LindowsOS(TM) CD Bundling and Distribution Agreement - Lindows.com Inc. and Albatron Technology Co. Ltd.
LINDOWSOS(TM) CD BUNDLING AND DISTRIBUTION AGREEMENT
This LindowsOS(TM) CD Bundling and Distribution Agreement (the
"Agreement") is entered into as of January, 1st, 2004 (the "Effective Date"), by
and between Lindows.com, Inc. ("Lindows.com"), a Delaware corporation with its
principal office located at 9333 Genesee Drive, San Diego, CA 92121, Telephone:
858-587-6700, Facsimile: 858-587-8095, email: licenses@lindows.com, and Albatron
Technology Co., Ltd., a Taiwan corporation, with its principal office located at
6F, No. 716, Chung Cheng Rd., Chung-Ho City, Taipei Hsien, Taiwan, Telephone:
+886-28227-3277 Fax: +886-28227-3266 ("Licensee").
WHEREAS, Lindows.com desires to license to Licensee and Licensee desires
to receive a license for Licensee to distribute the Software bundled with
certain of Licensee's products subject to the terms and conditions hereof;
NOW, THEREFORE, in consideration of the foregoing, and in reliance on the
mutual agreements contained herein, the parties hereby agree as follows:
1. DEFINITIONS. All definitions herein or elsewhere in this Agreement shall
apply both to the singular and plural forms, as the context may require.
1.1 "Product" means one copy of the Software installed on a CD-ROM disk
bundled and packaged together with a single unit of a Licensee Product to create
an integrated single product, all as provided herein.
1.2 "Computer" means a new, or refurbished by or for a System Builder,
personal desktop computer, laptop computer, notebook computer, or server
computer.
1.3 "End-User" means an individual or organization that acquires a Product
for personal and/or internal business use and not for reselling or distribution.
1.4 "Licensee Product" means a product manufactured by or for the benefit
and account of Licensee and specified on Exhibit B.
1.5 "Lindows.com Branding Features" means Lindows.com's proprietary trade
names, trade dress, service marks, trademarks, logos, and indicia of origin and
other distinctive branding features specified in Exhibit A hereto.
1.6 "Software" means certain computer programs including the LindowsOS(TM)
and related documentation and interface specifications developed, owned,
licensed, otherwise controlled, and/or distributed by Lindows.com, as more
specifically set forth at the website http://www.lindows.com/40 or any successor
website thereto, and any Updates to the foregoing.
1.7 "Master Disk" means a master disk image of the Software as made
available to Licensee by electronic download at http://builder.lindows.com or
any successor website thereto.
1.8 "Proprietary Rights" means any and all rights, whether registered or
unregistered, in, and with respect to, patents, copyrights, confidential
information, know-how, trade secrets, moral rights, contract or licensing
rights, confidential and proprietary information protected under contract or
otherwise under law, trademarks, trade names, trade dress, logos, service marks,
rights in and to animated characters and domain names, and all other
intellectual or industrial property throughout the world.
1.9 "Reseller" means a person or entity that distributes Products directly
or through other Resellers to End-Users, Products directly or through other
Resellers to System Builders, or Products integrated into Computers directly or
through other Resellers to End-Users.
1.10 "System Builder" means a third party that manufactures itself or has
manufactured for its benefit and account Computers.
1.11 "Update" means a new version, new release, upgrade, update, bug fix,
patch, work around, or other enhancement, modification, or revision of the
Software that is designated as such by Lindows.com, made available by
Lindows.com at the Lindows.com Builder website http://builder.lindows.com or any
successor website thereto, and provided by Lindows.com to Licensee pursuant to
this Agreement.
2. LICENSE.
2.1 GRANT. Subject to the restrictions set forth in Sections 2.2, 3, 4 and
5 below and the other terms and conditions of this Agreement, Lindows.com hereby
grants to Licensee a worldwide (except to the extent prohibited or restricted by
Section 3.5 below), non-exclusive, nontransferable, nonsublicensable, limited
right and license solely (a) to use the Master Disk provided by Lindows.com
solely to install a single copy per CD-ROM disk of the Software in object code
form only, and pursuant to the specifications and instructions provided from
time to time by Lindows.com at http://www.lindows.com/licenses or any successor
website thereto, on a CD-ROM disk; (b) to bundle and package together the
Software as installed on such CD-ROM disk with Licensee Products to create
Products; (c) to distribute the Software as installed on such CD-ROM disk only
as an integrated part of a Product to Resellers and System Builders with a
Reseller and Builder Agreement (as defined in Section 3.3 below) and End-Users
with a Lindows.com EULA (as defined in Section 3.3 below); and (d) to publicly
display Lindows.com Branding Features pursuant to Lindows.com's Trademark
Guidelines attached hereto as Exhibit A solely on Products and to promote and
market Products ((a) through (d), individually and collectively, the "License").
The foregoing License does not include the right for Licensee to have its rights
exercised by a third party for its benefit and account or on any other basis.
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EXHIBIT 10.12
2.2 RESTRICTIONS. Subject to Section 3.6 below, Licensee shall not: (a)
copy, reproduce, distribute or otherwise make available the Master Disk or any
Software or any portion or element thereof except as and to the extent expressly
authorized herein and by Lindows.com; (b) translate, adapt, enhance, create
derivative works of or otherwise modify the Master Disk or any Software, except
as expressly set forth in Section 2.1 above, (c) decompile, disassemble or
reverse engineer (except as and to the extent permitted by applicable local
law), or extract ideas, algorithms, procedures, workflows or hierarchies from,
the Master Disk, the Software, Lindows.com's Confidential Information, or any
portion or element of any of the foregoing, (d) use the Master Disk or the
Software or any portion or element thereof to provide facility management,
service bureau or similar services to third parties; or (e) reproduce or use in
any manner (except solely as and to the extent expressly authorized under
Section 2.1(d) above), or remove, destroy, obscure or alter any Lindows.com
Branding Features or any related materials placed on or contained within the
Master Disk, the Software, Lindows.com's Confidential Information, or any
portion or element of any of the foregoing. The foregoing restrictions on
reverse engineering shall not apply only to the extent reverse engineering is
explicitly permitted by mandatory provisions of applicable national legislation,
the provisions of which legislation do not permit the prohibition by contract of
such reverse engineering, subject to the following: In countries where mandatory
provisions of national legislation permit certain limited reverse engineering
for interoperability purposes, if Licensee believes that Licensee requires
information related to the interoperability of the Software with other programs,
Licensee shall not reverse engineer the Software to obtain such information but
instead shall request such information from Lindows.com. Upon receiving such a
request from Licensee with respect to such a country, Lindows.com shall
reasonably determine whether Licensee requires such information for a legitimate
purpose, and, if so, Lindows.com shall either itself implement such
interoperability information or provide such information to Licensee within a
reasonable time and on reasonable conditions. In the case that Lindows.com
informs Licensee that the information will not be provided or implemented, and
if Licensee wishes to reverse engineer the Software to ascertain, derive and/or
appropriate for any reason or purpose the source code or source listings for the
Software as permitted by the mandatory provisions of national legislation, it
shall inform Lindows.com in writing at least fifteen (15) days in advance. Any
interoperability information supplied under this Section 2.2 or obtained through
reverse engineering permitted hereunder shall be treated as Confidential
Information under the terms of this Agreement.
3. LICENSEE DUTIES.
3.1 COMPATIBILITY TESTING. Licensee shall, and shall require in any
agreement it enters into with Resellers, System Builders, or any other third
party that such Resellers, System Builders, and any other third party shall,
test and take other commercially reasonable measures to ensure the compatibility
of the Software with Products and/or Computers and that Computers containing the
Products function correctly (as applicable).
3.2. NO CHARGE FOR SOFTWARE. Licensee shall not charge any Reseller,
System Builder, End User or other party directly or indirectly for the Software.
3.3 BUILDER LICENSE AGREEMENT AND END USER LICENSE AGREEMENT. Licensee
shall include the LindowsOS Builder License Agreement ("Builder Agreement")
currently located at http://www.lindows.com/licenses and the LindowsOS License
Agreement ("Lindows.com EULA") currently located at
http://www.lindows.com/licenses in any distribution of a Software or a Product,
whether such Product is distributed alone or installed in and as part of a
Computer. In addition, Licensee shall: (a) place and affix in a conspicuous
place on bulk and individual unit packaging for Products a notice that any use,
distribution or other disposition of the Software and a Product other than by an
End User is subject to the Builder Agreement and that any use, distribution or
other disposition of the Software and a Product by an End User is subject to the
Lindows.com EULA; (b) include in all bulk and individual unit packaging for
Products the Builder Agreement as a "shrink-wrapped" or "click-wrapped" license
agreement that requires a Reseller and System Builder to view in full and
indicate assent either by opening the physical product package or by clicking on
a designated button, respectively; and (c) include the Lindows.com EULA as a
"shrink-wrapped" or "click-wrapped" license agreement that requires the End User
to view in full and indicate assent either by opening the physical product
package or by clicking on a designated button, respectively.
3.4 NO WARRANTIES. Licensee shall not make any representation or warranty
binding on or purporting to bind Lindows.com, including but not limited to in
connection with the performance, condition, title, non-infringement,
merchantability, fitness for a particular purpose, system integration or data
accuracy of a Master Disk, Software and/or Products, and Licensee shall disclaim
all warranties implied by law and other warranties to the maximum extent
permitted by applicable law.
3.5 EXPORT COMPLIANCE. Licensee shall be responsible for complying and
shall comply strictly with all United States import and export regulations (and
any similar regulations in foreign countries), shall not export, re-export,
divert or transfer, directly or indirectly, to any country (or any national or
resident of such country) that is embargoed by U.S. Export Administration
Regulations, Executive Order (or any similar regulations in foreign countries),
and shall obtain all required licenses, approvals and/or other clearances to
export, re-export or import, as applicable, the Master Disk, Software, and any
associated technical data, including, but not limited to where the Software is
bundled with a Product and/or installed into Computers via a Product.
3.6 OPEN SOURCE AND THIRD PARTY LICENSES. Certain Software Programs, or
portions thereof, included in the Software are distributed under the GNU General
Public License ("GPL"), other similar open source license agreements and other
third party agreements which contain terms that expand (or restrict) Licensee's
and/or third parties' rights to certain portions of the Software. The GPL and
other similar open source license agreements permit Licensee and/or third
parties to copy, modify, redistribute and have access to the source code of
certain portions of the Software. The GPL, other similar open source license
agreements, other third party agreements, on-line documentation, source code,
and other information about all such software programs are available at the
website http://www.lindows.com/licenses. To the extent the GPL, other similar
open source license agreements or other third party agreements require
Lindows.com to provide rights to the applicable portions of the Software that
are broader than the rights granted elsewhere in this agreement, then the GPL
and/or other similar open source license agreements shall take precedence over
the rights and restrictions set forth in this Agreement. Nothing in this Section
3.6 shall permit Licensee or any third party to use the Lindows.com Branding
Features in connection with exercising the rights granted under the GPL, other
similar open source license agreements or other third party agreements.
4. LICENSEE ACKNOWLEDGEMENT. Although the Software and the Lindows.com Products
are copyrighted, Licensee acknowledges and agrees that the Software, the Master
Disk, the Products and the Lindows.com Products, in each case, embody valuable
trade secrets proprietary to Lindows.com, as applicable. Except for the rights
and licenses expressly granted to Licensee in this Agreement, and subject to
Section 3.6, Licensee acknowledges and agrees that Lindows.com reserves and
retains all right, title and interest (including, without limitation, all
Proprietary Rights) in and to the Master Disk, the
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EXHIBIT 10.12
Software, the Lindows.com Branding Features and the Lindows.com Confidential
Information. Subject to the license granted in Section 2.1(d), Licensee hereby
acknowledges and agrees that Licensee has no right, title or interest in or to
the Lindows.com Branding Features, and all benefits from the use of the
Lindows.com Branding Features shall automatically vest in Lindows.com. Licensee
shall not (i) apply for registration of the Lindows.com Branding Features (or
any marks or features confusingly similar thereto) anywhere in the world, (ii)
alter, modify or change the Lindows.com Branding Features in any manner, (iii)
use any of the Lindows.com Branding Features, except as expressly authorized
herein or by prior written approval of the Lindows.com, or (iv) take any action
inconsistent with Lindows.com's ownership of the Lindows.com Branding Features.
Nothing contained in this Agreement will be construed as conferring upon
Licensee or any third party (by implication, operation of law, estoppel or
otherwise) any license or right not expressly granted by Lindows.com in this
Agreement.
5. CONFIDENTIALITY.
5.1 CONFIDENTIAL INFORMATION. Licensee acknowledges that, in the course of
exercising its rights or performing its obligations under this Agreement, it may
obtain confidential information relating to Lindows.com, its licensors or
licensees, contractors, agents, customers and/or end users ("Confidential
Information"). Such Confidential Information shall include, without limitation:
(a) the source code of the Master Disk and the Software, the terms of this
Agreement, and, as it relates to the Master Disk and the Software, Proprietary
Rights, techniques, processes, programs, ideas, algorithms, formulas,
schematics, testing procedures, software design and architecture, computer code,
internal documentation, design and functional specifications, product
requirements, problem reports and performance information, software documents
and other technical, business, product, marketing and financial information,
plans and data; (b) any information designated by Lindows.com as confidential in
writing or, if disclosed orally, reduced to writing and designated as
confidential within thirty (30) days; and (c) any nonpublic information
regarding Lindows.com, the Master Disk, Software, and other Lindows.com
products, including but not limited to, technical data, product design and
development, sales information, quantity and kind of products sold, prices and
methods of pricing, marketing techniques and plans, product returns, unannounced
products, product and process information and any other information which if
disclosed might be competitively detrimental to Lindows.com. Licensee shall not
use any Confidential Information except for the purposes of this Agreement and
shall protect such Confidential Information from disclosure to others, using the
same degree of care used to protect its own proprietary information of like
importance, but in no event less than a reasonable degree of care. Licensee may
disclose Confidential Information received hereunder only as reasonably required
to perform its obligations or exercise its rights under this Agreement and only
to third parties, its employees, and its agents who have a need to know for such
purposes and who are bound by signed, written agreements to protect the received
Confidential Information from unauthorized use and disclosure at least as
protective as this Section 5.
5.2 LIMITATIONS. The restrictions of this Agreement on use and disclosure
of Confidential Information shall not apply to information that: (a) was in the
possession or control of Licensee at the time of its disclosure by Lindows.com;
(b) is or becomes publicly known by Licensee through no wrongful act; (c) is
received by Licensee from a third party free to disclose it without any
confidentiality obligation; or (d) is independently developed by Licensee
without access to Confidential Information.
5.3 DISCLOSURES REQUIRED BY LAW. In the event Licensee is required by law,
regulation or court order to disclose Confidential Information, it will promptly
notify Lindows.com in writing prior to making any such disclosure in order to
facilitate Lindows.com's ability to seek a protective order or other appropriate
remedy from the appropriate body. Licensee further agrees that if it and/or
Lindows.com is not successful in precluding the requesting legal body from
requiring the disclosure of the Confidential Information, it will furnish only
that portion of the Confidential Information which is legally required and will
exercise all reasonable efforts to obtain reliable assurances that confidential
treatment will be accorded the Confidential Information. Any Confidential
Information released under this Section 5 shall remain Confidential Information
or all other purposes.
5.4 REMEDIES. The parties hereby agree that any breach of any provision of
this Agreement regarding confidentiality or protection of Proprietary Rights
would constitute irreparable harm, and that Lindows.com shall be entitled to
specific performance and injunctive relief in addition to other remedies at law
or in equity. This Section 5.4 shall not be construed to preclude Lindows.com
from seeking equitable relief under any other section of this Agreement.
6. TERM AND TERMINATION.
6.1 TERM. Unless earlier terminated in accordance with Section 6.2 below,
this Agreement shall commence as of the Effective Date and shall continue in
effect until (a) termination of this Agreement by either party upon thirty (30)
days written notice or (b) one (1) year, whichever is earlier.
6.2 TERMINATION. Either party may terminate this Agreement immediately if
the other party defaults in the performance of any material provision of this
Agreement and fails to cure such default within fifteen (15) days of receiving
written notice of such default from the non-defaulting party. Upon the
expiration or earlier termination of this Agreement, all rights and licenses
granted to Licensee hereunder shall terminate. The rights and obligations of the
parties under Sections 1, 2.2, 3.2, 3.3, 3.4, 3.5, 4, 5, 6, 7, and 8 will
survive any expiration or termination of this Agreement. Any termination of this
Agreement by either party shall not limit any right or remedies available at law
or equity to the terminating party nor impair any rights nor discharge any
obligations which have accrued to the terminating party as of the effective date
of such termination. Except where otherwise specified, the rights and remedies
granted to a party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the party may possess at law
or in equity.
7. DISCLAIMER; LIMITATION OF LIABILITY.
7.1 NO WARRANTY. LINDOWS.COM MAKES NO WARRANTY TO LICENSEE OF ANY KIND
WITH REGARD THE SOFTWARE, THE MASTER DISK, THE PRODUCTS, OR ANY CONFIDENTIAL
INFORMATION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, LINDOWS.COM, FOR ITSELF AND ON BEHALF OF ITS
LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS, STATUTORY
OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE,
CONDITION, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY,
SYSTEM INTEGRATION, DATA ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER
ARISING OUT OF LAW, CUSTOM, CONDUCT, OR OTHERWISE.
7.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT SHALL LINDOWS.COM AND ITS LICENSORS AND SUPPLIERS HAVE ANY
OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, WARRANTY, STRICT LIABILITY
OR UNDER ANY OTHER LEGAL THEORY) TO LICENSEE, OR TO ANY OTHER ENTITY OR PERSON,
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED
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EXHIBIT 10.12
TO, LOSS OF GOODWILL, LOSS OF PERFORMANCE, LOST PROSPECTIVE ECONOMIC ADVANTAGE,
LOST REVENUE OR PROFITS, OR LOSS OF DATA), IRRESPECTIVE OF WHETHER OR NOT SUCH
DAMAGES ARE FORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LINDOWS.COM'S MAXIMUM AGGREGATE LIABIILTY OF ANY KIND ARISING OUT OF THIS
AGREEMENT SHALL BE LIMITED TO FIFTY DOLLARS (US$50); PROVIDED, HOWEVER, THAT, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL (A) LICENSEE
OR ANY OTHER ENTITY OR PERSON HAVE ANY CLAIMS OR CAUSES OF ACTION OF ANY KIND
AGAINST LINDOWS.COM'S LICENSORS OR SUPPLIERS IN CONNECTION WITH THIS AGREEMENT,
AND (B) ANY OF LINDOWS.COM'S LICENSORS OR SUPPLIERS HAVE ANY LIABILITY (WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHER) WHATSOEVER TO LICENSEE OR ANY OTHER
ENTITY OR PERSON IN CONNECTION WITH THIS AGREEMENT.
8. GENERAL PROVISIONS. This Agreement represents the entire agreement
between Lindows.com and Licensee and supersedes all prior agreements and
understandings, whether written or oral, with respect to all matters covered in
this Agreement. This Agreement will not be altered, modified, or amended in any
respect except by a writing signed by each party. This Agreement is to be
construed in accordance with and governed by the internal laws of the State of
California (as permitted by Section 1646.5 of the California Civil Code or any
similar successor provision) without giving effect to any choice of law rule
that would cause the application of the laws of any jurisdiction other than the
internal laws of the State of California to the rights and duties of the
parties. Any dispute regarding this Agreement shall be subject to the exclusive
jurisdiction of the courts for the State of California in and for San Diego
County, California, U.S.A. (or, if there is federal jurisdiction, the United
States District Court for the Southern District of California), and the parties
agree to submit to the personal and exclusive jurisdiction and venue of these
courts. Nothing in this Agreement is intended to or will be construed to give
any person (other than Lindows.com and Licensee) any legal or equitable right,
remedy or claim under this Agreement or any provision hereof. Licensee may not
assign this Agreement or any of its rights or obligations hereunder, whether
voluntarily, by operation of law, indirectly, or otherwise. Failure by either
party to enforce at any time or for any period of time the provisions of this
Agreement will not be construed as a waiver of such provisions, and will in no
way affect such party's right to later enforce such provisions. If any part of
this Agreement is determined by any court of competent jurisdiction to be
unenforceable for any reason, such unenforceability will not affect the balance
of this Agreement, and the unenforceable provision will be changed and
interpreted so as to best accomplish the objectives of such provision within the
limits of applicable law. This Agreement may be executed, by manual or facsimile
signature, in multiple counterparts, which taken together shall constitute one
Agreement and each of which shall be considered an original for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives.
LINDOWS.COM, INC. [LICENSEE]
Signature: /s/ Larry Kettler Signature: /s/ Jack Kou
------------------------- --------------------------
Name: Name: Jack Kou
------------------------- --------------------------
Title: Title: President
------------------------- --------------------------
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EXHIBIT 10.12
EXHIBIT A
LINDOWS.COM BRANDING FEATURES; TRADEMARK GUIDELINES
BRANDING FEATURES
To be provided on request.
TRADEMARK NOTICES
The Branding Features are trademarks and service marks of Lindows.com. The
Branding Features shall be accompanied by the superscript "TM" or "(R)" symbol,
as specified by Lindows.com, which must appear to the immediate right of the
Branding Features. The footnote "LindowsOS is the trademark of Lindows.com,
Inc." or "Lindows.com is the trademark of Lindows.com, Inc.", as applicable,
shall accompany each use of the Branding Features (or, if a Branding Feature is
used multiple times in a document, screen or packaging, such notice shall
accompany the first prominent use in such document, screen or packaging).
USING THE BRANDING FEATURES
Licensee may only use the Branding Features as an indication that the
Software is being offered to end users via distribution pursuant to the
Agreement. Licensee may not use the Branding Features in such a way as to
suggest that the Branding Features may also apply to any hardware or software
other than the Software. When referring to Lindows.com, Inc., Licensee shall use
the name "Lindows.com". When referring to the Software, Licensee shall use the
trademark "LindowsOS".
SIZING AND PLACEMENT REQUIREMENTS
The digitized, machine-readable file for the artwork of the Branding
Features shall be delivered as provided above in this Exhibit A. Licensee shall
not alter this file or the Branding Features in any way, including, without
limitation, changing the color of any of the logos or artwork, separating any
words in the Branding Features from the remainder of the Branding Features or
replacing words with any other words.
Licensee shall not combine the Branding Features with any other feature,
including, without limitation, other marks, words, graphics, photos, slogans,
numbers, design features or symbols.
The Branding Features shall not be larger or more prominent than the
trademark, logo or any Licensee trade name that appears on the same packaging,
documentation, advertising or other materials. The Branding Features shall not
be smaller or less prominent than any name, trademark or logo of any third party
that appears on the same packaging, documentation, advertising or other
materials.
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EXHIBIT 10.12
EXHIBIT B
LICENSEE PRODUCTS
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