Territorial Software Distribution Agreement - Lindows Inc. and Questar Srl
TERRITORIAL SOFTWARE DISTRIBUTION AGREEMENT
This Territorial Software Distribution Agreement ("Agreement"), effective as of
this 12 day of April, 2004 (the "Effective Date"), is entered into by and
between Lindows, Inc., a Delaware corporation ("Supplier"), and Questar Srl, an
Italian corporation ("Distributor").
RECITALS
A. Distributor is in the business of licensing and distributing software
products in Italy, and desires to distribute Supplier's Product (as defined
below) in Italy.
B. Supplier is in the business of developing and licensing software products and
services, and desires to authorize Distributor to distribute the Product (as
defined below) in Italy.
The parties agree as follows:
1. DEFINITIONS:
(a) "Branding Guidelines" means Lindows' proprietary trade names, trade
dress, service marks, trademarks, logos, and indicia of origin and other
distinctive branding features as specified in the Lindows Branding Guidelines
attached hereto as Exhibit "C."
(b) "Customer" shall mean retail and end user purchasers of the Product
within the Territory.
(c) "Documentation" shall mean the end-user manuals relating to the
Software and services and related materials provided by Supplier to Distributor
hereunder.
(d) "Gold Master" shall mean a master disk image of the Software as made
available for delivery to Licensee via electronic download at the Builder
website http://builder.lindows.com or any successor website thereto or on CD-ROM
or other media.
(e) "OEM Customer" shall mean computer builders, system integrators of
computers, and value-added resellers of computers pre-installing LindowsOS on
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complete computer systems actually within the Territory and who execute a valid
Builder Agreement located at [http://www.lindows.com/licenses] with Supplier.
(f) "Product" shall mean the Software and Documentation listed on Exhibit
"A" attached hereto, including any modifications, improvements, alterations,
translations, localization, innovations, or changes of any kind performed on the
Software or Documentation by Distributor.
(g) "Services" shall mean the services set forth in Exhibit "A" attached
hereto.
(h) "Software" shall mean the computer program(s) listed in Exhibit "A" in
machine executable object code format only.
(i) "Territory" shall mean the country of Italy.
2. APPOINTMENT: In consideration of the Exclusive Licensing Fee (as defined in
Section 5 below), Supplier hereby appoints Distributor, and Distributor hereby
accepts the appointment, as Supplier's sole and exclusive distributor in the
Territory for the Licensed Term (as defined in Section 9 below), to distribute
Localized Product (as defined in Section 2(d) below) on CD ROM disks and
repackaged as set forth in Section 2(a) below directly to Customers in the
Territory. Subject to Section 2(j) below, the restrictions set forth in Section
(i) below, and the other terms and conditions of this Agreement, Supplier hereby
grants to Distributor a non-transferable, personal, non-sublicensable except as
expressly set forth in this Section below, without the right to have
Distributor's rights exercised on behalf of Distributor by a third party,
limited right and license in the Territory during the Licensed Term of this
Agreement to:
(a) Copy and install the Software portion of the Localized Product (as
defined in Section 2(d) below) in object code format only onto copies of CD ROM
disks and repackage such CD ROM disks and the Documentation portion of the
Localized Product (as defined in Section 2(d) below) and with an end user
license agreement (the "End User License Agreement") with terms substantially
the same as those set forth in Exhibit "B", both for distribution to Customers
for retail sale within the Territory.
(b) Distribute the Localized Product to Customers with and pursuant to the
End User License Agreement directly through Distributor's retail locations and
Distributor's online retail site within the Territory.
(c) Set up OEM Customers for the distribution of Software, Documentation,
and Localized Product pre-installed on the respective OEM Customer's computer
system products. Specifically this appointment shall be non-exclusive,
Supplier's OEM customers shall be entitled to sell computer systems with the
Software and/or Documentation installed within the Territory, but Supplier will
not engage in securing OEM Agreements within the Territory, unless in
coordination with, and with compensation to Distributor as provided herein.
Distributor shall distribute the Software, Documentation and Localized Product
only to OEM Customers who have executed a valid Builder Agreement with Supplier,
only for installation in the Territory by such OEM Customer on such OEM
Customer's computer systems, only for distribution pre-
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installed on such OEM Customer's computer systems, and only for distribution to
Customers with and pursuant to the End User License Agreement. Such OEM
Customers may distribute the Localized Product, only as installed on such OEM
Customer's computer systems, outside of the Territory. However, neither
Distributor nor OEM Customer shall have any of the exclusive rights granted in
this Agreement with regard to the distribution of the Localized Product to end
users located outside of the Territory.
(d) Translate and localize the English version of the Product into
appropriate Italian language using the pre-existing translation applications
available to create a localized Product (the "Localized Product"). Supplier
reserves the right to terminate this Agreement in its sole and complete
discretion in the event that the Localized Product does not operate effectively
or provide all defined functions, or is not accurate. Any translation and
localization problems or defects which do not entail Software malfunctioning,
operating defects, or inaccuracies shall not be deemed as a failure of
Supplier's reasonable requirements and shall not justify the termination of this
agreement. Distributor shall have forty-five (45) days to cure to Supplier's
satisfaction after receiving written notification by registered letter of the
Supplier's intention to terminate this agreement which notification shall
contain a detailed description of the grounds and requirements which are deemed
not to be satisfied. Absent the above-mentioned notice and cure period, any
termination shall be void and to no effect.
(e) Sublicense to third party distributors in the Territory Distributor's
rights under Sections 2(b) and 2(e) only and to third party retailers in the
territory Distributor's rights under 2(b) only, both pursuant to an agreement
consistent with and substantially the same as this Agreement (except such
agreement shall not include the rights set forth in Sections 2(c) and 2(d)).
(f) Sublicense the Localized Product to Customers pursuant to the End User
License Agreement.
(g) Use the Product internally solely for the purpose of providing
customer support services, demonstrations and marketing purposes.
(h) For clarity, Distributor's rights under Section 2(b) shall include the
right for Distributor to distribute downloadable versions of the Localized
Product on-line and via the Internet, using both Distributor's facilities and
hardware resources for e-commerce, and any services, facilities and hardware
resources supplied by third party retailers who are validly sublicensed pursuant
to Section 2(e). If deemed necessary by an any of the parties, further terms and
conditions or the material sale implementation procedures shall be settled with
a further agreement between the same parties, which shall be executed within a
reasonable amount of time after request in writing from either party.
(i) Subject to Section 2(j) below, Distributor will not, and shall ensure
that any OEM Customer, distributor, retailer, Customer, or other third party
does not: (a) copy, reproduce, distribute or otherwise make available the
Software, Documentation, Product or Localized Product or any portion or element
of any of the foregoing except as and to the extent expressly authorized herein
and by Supplier; (b) translate, adapt,
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EXHIBIT 10.13
enhance, create derivative works of or otherwise modify the Software,
Documentation, Product or Localized Product or any portion or element of any of
the foregoing, except as expressly set forth in Section 2(d) 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 Software, Documentation, Product or Localized
Product or any portion or element of any of the foregoing, (d) use the Software,
Documentation, Product or Localized Product or any portion or element of any of
the foregoing 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 above), or remove, destroy,
obscure or alter any Lindows.com Branding Features or any related materials
placed on or contained within the Software, Documentation, or Product or any
portion or element of any of the foregoing. Distributor shall not, and shall not
allow any other OEM Customer, distributor, or retailer to, make any
representation or warranty binding on or purporting to bind Supplier, 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 the Software, Documentation, Product or
Localized Product or any portion or element of any of the foregoing, and
Distributor shall disclaim all warranties implied by law and other warranties to
the maximum extent permitted by applicable law. Distributor shall comply
strictly with all United States import and export regulations (and 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 Software, Documentation, Product or Localized Product or any portion or
element of any of the foregoing, and any associated technical data, including,
but not limited to, where a Software, Documentation, Product or Localized
Product or any portion or element of any of the foregoing is installed on
computer system.
(j) Certain software, 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) Distributor's and/or third parties' rights to certain
portions of the Software. The GPL and other similar open source license
agreements permit Distributor 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 www.lindows.com/licensing
(http://www.lindows.com/licensing). To the extent the GPL, other similar open
source license agreements or other third party agreements require Supplier 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 2(j) shall
permit Distributor 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.
3. OBLIGATIONS OF DISTRIBUTOR:
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EXHIBIT 10.13
(a) Diligence. Distributor shall use commercially reasonable efforts to
promote the marketing and distribution of the Product to realize the maximum
sales potential for the Product in the Territory. Except as expressly set forth
herein, Distributor shall be solely responsible for all costs and expenses
related to the advertising, marketing, promotion, and distribution of the
Product and for performing its obligations hereunder.
(b) Repackaging. Any retail repackaging of the Product must be approved by
Supplier before the distribution of the Product in the Territory, provided,
however, that such approval shall not be unreasonably withheld.
(c) Translation; Localization. Distributor shall translate or localize the
Product into the Italian language as provided in Section 2(d), provided,
however, that Supplier retain and shall have all ownership rights in and to the
Software, Documentation, Product, and Localized Product. Distributor understands
and agrees that Supplier shall have the right, at its sole and absolute
discretion, to sell and distribute the Localized Product to end users or OEM
customers outside of the Territory. Distributor shall provide a copy of any and
all publicly released versions of the Localized Product ten (10) days prior to
the release of the Localized Product. Distributor shall use its best efforts to
release the first version of the Localized Product within three (3) months of
the Effective Date of this Agreement (the "Release Date").
(d) Product Support.
(i) Distributor shall provide reasonable technical support to
Customers, including without limitation, maintaining trained and competent
technical and engineering support personnel for the Localized Product who are
sufficiently knowledgeable with respect to the Localized Product to answer
Customer questions regarding the use and operation of Product, responding
promptly to requests for technical support from Customers, and providing
technical support services to address and resolve Customers' support requests
with respect to the Localized Product.
(ii) Distributor shall ensure that all Customer questions regarding
the use or operation of Localized Product are initially addressed to and
answered by Distributor. Unless otherwise agreed in writing by Supplier,
Distributor shall not represent to any third party that Supplier is available to
answer questions from any Customer directly.
(f) End User License. Prior to providing any Customer with any Software,
Distributor shall ensure that each Customer has read, and agreed to the terms
and conditions of, and validly executed the End User License Agreement contained
in each software unit. As set forth more fully in Section 2(i), Distributor
shall not conduct, support, or permit, and shall not authorize any third party
to conduct, support, or permit, the copying, modification, alteration, reverse
engineering, disassembly or decompiling of the Product.
4. OBLIGATIONS OF SUPPLIER:
(a) Marketing Support. Supplier shall provide Distributor with reasonable
marketing support, including providing reasonable quantities of Supplier's
advertising
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EXHIBIT 10.13
and promotional materials, pricing information and technical data related to the
Product. Supplier may also from time to time provide, at Supplier's sole
discretion, monetary support for certain marketing and promotional activities
involving the Product, such as exhibitions, conventions, trade shows, and
advertisements.
(b) Software and Membership ID's. Within ten (10) days of the Effective
Date of this Agreement, Supplier shall provide the following to Distributor: (i)
a Gold Master for the LindowsOS (both OEM & Retail versions); (ii) a Gold Master
for the Click-N-Run Express; (iii) a Gold Master for the Lindows Laptop Edition;
and (iv) the product identification numbers for the Services identified in
Exhibit A, in the amount consistent with the number of Services purchased by
Distributor pursuant to the terms of Section 6(a) below.
5. EXCLUSIVE LICENSING FEE: In consideration of Supplier's appointment of
Distributor as its exclusive distributor in the Territory pursuant to Section 2
above, Distributor shall pay Supplier a fully earned, nonrefundable, exclusive
licensing fee of *** (the "Exclusive Licensing Fee"). The Exclusive Licensing
Fee shall be paid in two (2) payments according to the following schedule:
PAYMENT NO. DATE AMOUNT
----------- ---- ------
1 *** ***
2 *** ***
All payments by Distributor to Supplier under this Section 5 shall
be in U.S. Dollars via certified check or electronic wire transfer. In the event
that Distributor fails to make payment of the Exclusive Licensing Fee according
to the schedule above, Supplier shall notify Distributor that Distributor is in
breach of this Section 5 pursuant to the Notice provision in Section 15(l)
below, and Distributor shall have thirty (30) days from the date Distributor
receives such notice to cure such breach, and Supplier shall charge Distributor
a one percent (1%) late fee for any such amount due to Supplier (the "Late
Fee"). In addition to the Late Fee, the past due amount shall accrue interest at
eighteen percent (18%) per annum. If, after thirty (30) days from the date
Distributor receives notice of such breach, Distributor has not paid Supplier
the amounts due, plus the Late Fee, with interest, Supplier shall, at its sole
and absolute discretion, elect to terminate this Agreement, upon which the
Exclusive Licensing Fee, in its entirety, plus the Late Fee, with interest,
shall immediately become due and payable to Supplier, and Distributor shall no
longer be entitled to any of the rights granted in Section 2 above.
6. PRICE/PAYMENT:
(a) Per Unit License Fee. Pursuant to Section 2(a) above, for each CD-ROM
disk copied from the Gold Master, and for each Service purchased from Supplier,
Distributor shall pay a per-unit licensing fee to Supplier (the "Per Unit
License Fee"). During the Licensed Term (as defined in Section 9 below),
Distributor shall pay Supplier the Per Unit License Fee according to the
following schedule:
PRODUCT PRICE
------- -----
LindowsOS (Retail Version) ***
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EXHIBIT 10.13
LindowsOS (OEM Version) ***
LindowsOS (Developer Version) ***
LindowsOffice with StarSuite ***
LindowsLive (CD) ***
Lindows Laptop Edition ***
SERVICE PRICE MINIMUM UNITS PURCHASED
------- ----- -----------------------
LindowsPlus Membership *** ***
VirusSafe *** ***
SurfSafe *** ***
All payments by Distributor to Supplier under this Section 6(a)
shall be made in U.S. Dollars via certified check or electronic wire transfer.
Distributor shall provide Supplier, on a monthly basis, sales, shipment,
inventory, and other written or electronic reports relating to Distributor's
activities under this Agreement during the prior month. All payments made by
Distributor to Supplier shall be made within thirty (30) days from the date
Distributor ships Product from its manufacturing facility.
(b) Expiration of the Licensed Term. Distributor understands and agrees
that the Per Unit License Fee set forth in Section 6(a) above shall only be
valid during the Licensed Term of this Agreement. Distributor further
understands and agrees that all Product, or Localized Product, copied by
Distributor pursuant to the terms of this Agreement shall be shipped from
Distributor's manufacturing facility by the end of the Licensed Term.
Distributor shall have no right to ship from Distributor's manufacturing
facility, any Product, or Localized Product, copied pursuant to the terms of
this Agreement, after the expiration of the Licensed Term. Any Product, or
Localized Product, copied pursuant to the terms of this Agreement, which remains
unsold by Distributor upon expiration of the Licensed Term, if any, shall be
destroyed by Distributor, at Distributor's expense, and Distributor shall
provide Supplier with a record of all destroyed Product or Localized Product.
Any Services purchased pursuant to the terms of this Agreement, which remain
unsold by Distributor upon expiration of the Licensed Term, if any, shall be
sold within ninety (90) days from the end of the Licensed Term.
(c) Taxes. The prices set forth in Section 6(a) above do not include any
Italian taxes, including franchise, sales and use taxes, if any. Distributor
shall be solely responsible for payment of any and all such taxes or
obligations, including any fines, penalties, or interest relating thereto.
Notwithstanding the foregoing, any sum required under applicable tax laws to be
withheld by Distributor for account of Supplier from payments due to Supplier,
shall be withheld and shall be promptly paid by Distributor to the appropriate
tax authorities. Distributor shall furnish Supplier official tax receipts or
other appropriate evidence issued by tax authorities sufficient to enable
Supplier to file a claim for credit in respect of any sum so withheld against
its home country's income taxes.
(d) Product Identification Numbers. For all Services that Distributor
purchases during the Licensed Term pursuant to Section 6(a) above, Supplier
shall
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EXHIBIT 10.13
provide Distributor with the product identification numbers for the
corresponding Services within ten (10) days of receipt of Distributor's payment
for such Services.
(e) Books and Records; Audit. Both parties shall maintain complete books,
records and accounts relevant to computation and accounting for amounts payable
under this Agreement. Each party agrees to allow an independent certified public
accountant the right to audit and examine such books, records and accounts
during normal business hours no more than once per year upon ten (10) days
notice at such examining party's expense, to verify the accuracy of the reports
and payments made under this Section 6. In the event any such audit reveals that
a party has knowingly breached a material obligation hereunder, then, in
addition to such other remedies as such examining party may have, the audited
party shall pay or reimburse to the examining party the cost of such audit.
7. REVENUE SHARING: Distributor shall receive quarterly revenue sharing reports
from Supplier that will provide in detail the number of "Light Ups" that have
occurred during the previous quarter, which shall determine the percentage of
"Net Revenue" that is paid to Distributor from sales of software and services
purchased by End Users from the Warehouse ("Revenue Sharing"). For purposes of
this Agreement, "Light Up" shall mean the unique instance when an End User turns
on the computer system, pre-installed with the Localized Product, with a unique
"Builder ID Number," for the first time, and is connected to the internet. For
purposes of this Agreement, "Net Revenue" shall mean the total revenue generated
from sales of software and services purchased by End Users from the Warehouse,
less any associated taxes, costs and fees. For purposes of this Agreement,
"Builder ID Number" shall mean a unique number, provided to each End User, which
identifies to Supplier that such End User obtained the Product from Distributor.
For each End User that purchases a computer system, pre-installed with the
Localized Product, with a unique Builder ID Number, Distributor shall be
entitled to Revenue Sharing from the Light Up date until the end of the Licensed
Term, or until the termination of this Agreement, whichever is earlier.
The revenue sharing percentages are as follows:
LIGHT UPS % NET REVENUE
--------- -------------
*** ***
*** ***
*** ***
*** ***
*** ***
Supplier shall make Revenue Sharing payments to Distributor within thirty (30)
days from the date Distributor receives the quarterly revenue sharing reports
from Supplier.
8. LIMITED WARRANTY:
(a) Limited Warranty. Subject to the provisions of this Section 8 below,
Supplier warrants that for a period of sixty (60) days from the date Distributor
receives any Gold Master ("Warranty Period") the Software will conform to the
specifications expressly set forth in the Documentation provided by Supplier. In
the event that the
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Software fails to conform to such specifications during the Warranty Period,
Supplier shall use commercially reasonable efforts to repair and correct such
errors so that the Software conforms to such specifications. The foregoing
sentence shall be Supplier's entire obligation and liability to Distributor and
any other party, and Distributor's and any other party's sole and exclusive
remedy, under this Agreement and in connection with the Software, Documentation,
and Product for any breach of the limited warranty provided in this Section.
(b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8(a)
ABOVE, SUPPLIER MAKES NO WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY, IMPLIED,
OR OTHERWISE, AND SUPPLIER SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING THE FOREGOING, SUPPLIER DOES NOT EXCLUDE LIABILITY TO THE EXTENT
THAT SUCH LIABILITY MAY NOT BE EXCLUDED OR LIMITED BY LAW.
(c) Customer Claims. Distributor shall ensure that all Customer claims for
warranty, repair, or replacement are addressed to Distributor and not to
Supplier.
9. TERM AND TERMINATION:
(a) Licensed Term. This Agreement shall commence upon the Effective Date
and continue in full force and effect for a fixed term of eighteen (18) months
("Licensed Term"), unless earlier terminated in accordance with the provisions
of this agreement. At the one year anniversary of the signing of this agreement,
parties shall meet via teleconference to discuss and measure success of this
venture and jointly decide on renewal of the partnership and the terms of such
partnership.
(b) Breach. If a party is in material breach of this Agreement and has
failed to cure such material breach within thirty (30) days after receiving
written notice from the other party of such material breach, the party not in
breach may terminate this Agreement. Without limiting the foregoing, either
party may terminate this Agreement effective upon written notice to the other
party stating such party's intention to terminate, in the event the other party:
(i) ceases to function as a going concern or to conduct operations in the normal
course of business (ii) has a petition filed by or against it under any
bankruptcy or insolvency law which petition has not been dismissed or set aside
within sixty (60) days of its filing; or (iii) fails to perform any of its
obligations under this Agreement so as to be in default hereunder and fails to
cure such default within thirty (30) days after written notice of such default.
(c) Customer Support. Distributor may continue to use the Product after
termination of this Agreement to provide customer support services set forth in
Section 3(d) above, provided, however, that Distributor is not in breach or
default of payment, pursuant to Sections 5 and 6(a) above.
(d) No Liability for Termination. Except as expressly required by law, in
the event of termination of this Agreement by either party in accordance with
any of the
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EXHIBIT 10.13
provisions of this Agreement, neither party shall be liable to the other,
because of such termination, for compensation, reimbursement or damages on
account of the loss of prospective profits or anticipated sales or on account of
expenditures, inventory, investments, leases or commitments in connection with
the business or goodwill of Supplier or Distributor. Termination shall not,
however, relieve either party of obligations incurred prior to the termination.
(e) Survival. The following provisions shall survive expiration or any
termination of this Agreement: Sections 8, 9(c)-(f), 10, 11, 13, 15 and the last
sentence in Section 12(b).
(f) Return of Materials. All Software, Documentation, Product, trademarks,
marks, trade names, patents, copyrights, designs, drawings, formulas or other
data, photographs, samples, literature, and sales and promotional aids of every
kind shall remain the property of Supplier. Within thirty (30) days after the
effective date of termination of this Agreement, Distributor shall at Supplier's
option destroy all tangible items bearing, containing, or contained in, any of
the foregoing, in its possession or control and provide written certification of
such destruction, or prepare such tangible items for shipment to Supplier or
Supplier's designee, as Supplier may direct, at Supplier's expense. Distributor
shall not make or retain any copies of any Confidential Information (as defined
in Section 10, below), which may have been entrusted to it.
10. CONFIDENTIALITY AND PROPRIETARY RIGHTS:
(a) Confidential Information. The term "Confidential Information" shall
mean any information disclosed by one party to the other party pursuant to this
Agreement or either party's activities hereunder, including, without limitation,
technical data, product design and development, sales information, quantity and
kind of products licensed, prices and methods of pricing, marketing techniques
and plans, product returns, unannounced products, product and process
information, and any other information which, if disclosed to others, might be
competitively detrimental to either party.
(b) Confidentiality. Each party shall treat as confidential all
Confidential Information of the other party, shall not use such Confidential
Information except to exercise its rights and perform its obligations under this
Agreement herein, and shall not disclose such Confidential Information to any
third party, except as expressly authorized in Section 10(c) below. Without
limiting the foregoing, each of the parties shall use at least the same degree
of care it uses to prevent the disclosure of its own confidential information of
like importance, to prevent the disclosure of Confidential Information of the
other party. Each party shall promptly notify the other party of any actual or
suspected misuse or unauthorized disclosure of the other party's Confidential
Information.
(c) Exceptions. Confidential Information excludes information that: (i)
was in the public domain at the time it was disclosed or has become in the
public domain through no fault of the receiving party; (ii) was known to the
receiving party, without restriction, at the time of disclosure, as demonstrated
by files in existence at the time of disclosure; (iii) is disclosed with the
prior written approval of the disclosing party; (iv)
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EXHIBIT 10.13
was independently developed by the receiving party without any use of the
Confidential Information; (v) becomes known to the receiving party, without
restriction, from a source other than the disclosing party, without breach of
this Agreement, by the receiving party; or (vi) is disclosed generally to third
parties by the disclosing party without restrictions similar to those contained
in this Agreement. The receiving party may disclose the other party's
Confidential Information to the extent such disclosure is required by order or
requirement of a court, administrative agency, or other governmental body.
(d) Proprietary Rights. Distributor agrees that Supplier retains all of
its right, title and interest in and to all patent rights, trademarks, trade
names, inventions, copyrights, know-how and trade secrets relating to the
Product, including modifications, translations, and/or localization of the
Product performed by Distributor, or the product lines that include the Product,
and the design, manufacture, operation or service of the Product. To the extent
that the Product contains or incorporates intellectual property of parties other
than Supplier, Distributor agrees to respect such third party rights and abide
by any terms and conditions contingent upon grant and use of such rights, and
that such third parties retain any such rights, if applicable. The use by
Distributor of any of these property rights is authorized only for the purposes
herein set forth and upon termination of this Agreement for any reason such
authorization will cease, subject to Section 9 (d). Distributor shall not (and
shall require that its Customers do not) remove, alter, cover or obfuscate any
copyright notices or other proprietary rights notices placed or embedded by
Supplier on or in any Product. Distributor hereby irrevocably assigns and agrees
to assign to Supplier, without additional consideration, all right, title and
interest in and to the Localized Product, whether currently existing or created
or developed later, including, without limitation, all copyrights, trademarks,
trade secrets, patents, industrial rights and all other intellectual property
and proprietary rights related thereto, whether existing now or in the future,
effective immediately upon the inception, conception, creation or development
thereof. Distributor shall (a) disclose promptly to Supplier the Localized
Product and any new version thereof, and (b) whether during or after the term of
this Agreement, execute such written instruments and do such other acts as may
be necessary in the opinion of Supplier to obtain a patent, register a copyright
or otherwise evidence or enforce Supplier's rights in and to such Localized
Product (and Distributor hereby irrevocably appoints Supplier and any of its
officers as its attorney in fact to undertake such acts in its name). To the
extent, if any, that Distributor retains any right, title or interest in or to
the Localized Product, Distributor hereby grants to the Supplier a perpetual,
irrevocable, fully paid-up, transferable, sublicensable, worldwide right and
license (a) to use, reproduce, distribute, display and perform (whether publicly
or otherwise), prepare derivative works of and otherwise modify, make, sell,
offer to sell, import and otherwise use and exploit (and have others exercise
such rights on behalf of Supplier) all or any portion of such Localized Product,
in any form or media (now known or later developed); (b) to modify all or any
portion of such Localized Product, including, without limitation, the making of
additions to or deletions from such Localized Product, regardless of the medium
(now or hereafter known) into which such Localized Product may be modified and
regardless of the effect of such modifications on the integrity of such
Localized Product; and (c) to identify Distributor, or not to identify
Distributor, as one or more authors of or contributors to such Localized Product
or any portion thereof, whether or not such Localized Product or any portion
thereof have been modified. Distributor further waives any "moral" rights or
other rights with respect to attribution of
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EXHIBIT 10.13
authorship or integrity of such Localized Product Distributor may have under any
applicable law, whether under copyright, trademark, unfair competition,
defamation, right of privacy, contract, tort or other legal theory.
11. PATENT/COPYRIGHT/TRADEMARK WARRANTY AND INDEMNIFICATION
(a) Indemnity. Provided Distributor adheres to the Branding Guidelines set
forth by Supplier, Supplier represents and warrants that the Product or any part
thereof, does not violate or infringe any patent, copyright, trademark, trade
secret or other proprietary right of any third party. Supplier agrees, at its
own expense, to defend any third party claim, suit or proceeding (collectively,
"Action") brought against Distributor alleging the Product infringes any patent,
copyright, trademark, trade secret or other proprietary right of Supplier in
existence as of the Effective Date, subject to the limitations hereinafter set
forth. Supplier agrees to pay, subject to the limitations hereinafter set forth,
any final judgment entered against Distributor on such issue in any such Action.
Distributor shall notify Supplier promptly in writing of such Action filed
against Distributor and shall have the right, but not the obligation, to
participate in the defense of any such suit or proceeding at Distributor's
expense. Distributor will provide the Supplier with proper and full information
and its reasonable assistance in the defense of any claim, suit or proceeding,
at Supplier's expense. If it is adjudicatively determined that the Product, or
any part thereof, infringe any patent, copyright or trademark, or if the sale or
use of the Product, or any part thereof, is, as a result, enjoined, or in the
event of any pending or threatened claim of infringement, then Supplier may, at
its election, option, and expense: (i) procure for Distributor the right under
such patent, copyright or trademark to sell or use, as appropriate, the Product
or such part thereof; (ii) modify the Product or part thereof; or (iii) cease
distribution of the Product, or part thereof, and refund any payments (including
any minimum product purchases under Section 6) paid by Distributor for such
Product.
(b) Modifications to Branding Guidelines. Supplier reserves the right to
modify the Branding Guidelines from time to time, and shall give Distributor
notice of any such modifications. Within ninety (90) days of receipt of notice
of any modifications to the Branding Guidelines, Distributor shall act to assure
that all Product, Product marketing materials or other promotional matter
complies with the Branding Guidelines. If at any time Distributor fails to
follow the Branding Guidelines, Supplier shall be relieved of any obligation set
forth in Section 10 relating to or resulting from such failure.
12. USE OF TRADEMARKS/TRADE NAMES:
(a) Trademarks. During the term of this Agreement, Distributor shall have
the right to indicate to the public that it is an authorized distributor of
Supplier's Product and to advertise such Product under the trademarks, marks,
and trade names of Supplier and in the promotion and distribution of the
Product; provided, however, that upon thirty (30) days prior written notice to
Distributor, Supplier may substitute alternative marks for any or all of such
Supplier's
12
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EXHIBIT 10.13
trademarks used by Distributor. All representations of Supplier's trademarks
that Distributor intends to use shall first be submitted to Supplier for
approval (which shall not be unreasonably withheld) of design, color and other
details or shall be exact copies of those used by Supplier. In addition,
Distributor shall fully comply with all reasonable guidelines, if any,
communicated by Supplier concerning the use of Supplier's trademarks.
(b) Use. Distributor shall not alter or remove any of Supplier's
trademarks affixed to the Product by Supplier. Except as set forth in this
Section 12, nothing contained in this Agreement shall grant or shall be deemed
to grant to Distributor any right, title or interest in or to Supplier's
trademarks. All uses of Supplier's trademarks will inure solely to Supplier and
Distributor shall obtain no rights with respect to any of Supplier's trademarks,
other than the right to distribute Product as set forth herein, and Distributor
irrevocably assigns to Supplier all such right, title and interest, if any, in
any of Supplier's trademarks. At no time during or after the term of this
Agreement shall Distributor challenge or assist others to challenge Supplier's
trademarks (except to the extent expressly prohibited by applicable law) or the
registration thereof or attempt to register any trademarks, marks or trade names
confusingly similar to those of Supplier. Upon termination of this Agreement,
Distributor shall immediately cease to use all Supplier's trademarks (other than
for any remaining inventory to be sold during the "Wind Down Period").
13. LIMITATION OF LIABILITY: EXCEPT FOR DISTRIBUTOR'S OBLIGATIONS UNDER SECTION
15(C), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, OR ANY OTHER SPECIAL, RELIANCE, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING
LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY STATED HEREIN. NEITHER PARTY'S LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL EXCEED THE AGGREGATE AMOUNTS PAID BY
DISTRIBUTOR TO SUPPLIER HEREUNDER. NOTWITHSTANDING THE FOREGOING, THIS SECTION
13 SHALL NOT BE APPLICABLE WITH REGARD TO ANY BREACH OR LIABILITY UNDER SECTIONS
10 AND 11.
14. COMPLIANCE WITH LAWS:
(a) Export Control. Distributor understands and acknowledges that Supplier
is subject to regulation by agencies of the United States Government, including,
but not limited to, the U.S. Department of Commerce, which prohibit export or
diversion of certain Product and technology to certain countries. Any and all
obligations of Supplier to provide the Product, as well as any other technical
information or assistance shall be subject in all respects to such United States
laws and regulations as shall from time to time govern the license and delivery
of technology and Product abroad by persons subject to the jurisdiction of the
United States, including the Export Administration Act of 1979, as amended, any
successor legislation, and the Export Administration Regulations issued
13
<PAGE>
EXHIBIT 10.13
by the Department of Commerce, Bureau of Export Administration. Distributor
agrees to cooperate with Supplier including without limitation, providing
required documentation, in order to obtain export licenses or exemptions
therefrom. Distributor warrants that it will comply with the Export
Administration Regulations and other United States laws and regulations
governing exports in effect from time to time. Distributor further agrees not to
resell Product to any organization, public or private, which engages in the
research or production of military devices, armaments, or any instruments of
warfare, including biological, chemical and nuclear warfare.
(b) Governmental Approvals. Distributor represents and warrants that it
has obtained all required approvals of the government within the Territory in
connection with this Agreement and that the provisions of this Agreement and the
rights and obligations of the parties hereunder, are enforceable under the laws
within the Territory. Supplier represents and warrants that it has obtained all
required approvals of the United States government in connection with this
Agreement and that the provisions of this Agreement and the rights and
obligations of the parties hereunder, are enforceable under the laws of the
United States of America.
15. MISCELLANEOUS PROVISIONS:
(a) Independent Contractors. The relationship of Supplier and Distributor
established by this Agreement is that of independent contractors, and neither
party is an employee, agent, partner or joint venturer of the other.
(b) Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither party shall assign any of its rights,
obligations, or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other party which consent shall not be withheld
unreasonably.
(c) Indemnity. Except for warranty claims for which Supplier is liable
under Section 8 and infringement claims covered by Section 11, Distributor
agrees to indemnify and hold Supplier harmless against any cost, loss, liability
or expense (including attorneys' fees) arising out of third party claims against
Supplier relating to Distributor's use and distribution of the Product.
(d) No Implied Waivers. The failure of either party at any time to require
performance by the other of any provision hereof shall not affect the right of
such party to require performance at any time thereafter, nor shall the waiver
of either party of a breach of any provision hereof be taken or held to be a
waiver of a provision itself.
(e) Severability. If any provision of this Agreement is held to be invalid
by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect. The parties agree to renegotiate
in good faith those provisions so held to be invalid to be valid, enforceable
provisions which provisions shall reflect as closely as possible the original
intent of the parties, and further agree to be bound by the mutually agreed
substitute provision.
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<PAGE>
EXHIBIT 10.13
(f) Force Majeure. Except for payment of monies, neither party shall be
liable for failure to fulfill its obligations under this Agreement or for delays
in delivery due to causes beyond its reasonable control, including, but not
limited to, acts of God(s), acts of terror, man-made or natural disasters,
earthquakes, fire, riots, flood, material shortages, strikes, delays in
transportation or inability to obtain labor or materials through its regular
sources. The time for performance of any such obligation shall be extended for
the time period lost by reason of the delay.
(g) Conflicting Terms. The parties agree that the terms and conditions of
this Agreement shall prevail, notwithstanding contrary or additional terms, in
any purchase order, sales acknowledgment, confirmation or any other document
issued by either party effecting the purchase and/or sale of Product.
(h) Authority. The parties executing this Agreement on behalf of Supplier
and Distributor represent and warrant that they have the authority from their
respective governing bodies to enter into this Agreement and to bind their
respective companies to all the terms and conditions of this Agreement.
(i) English Language. English shall be used as the authoritative text of
this Agreement, regardless of the existence of counterparts translated into
another language, and all communications, arbitrations, and other adjudications
hereunder shall be made and conducted in English.
(j) Recitals. The parties agree that each and every recital of this
Agreement shall be a covenant and agreement as well as a recital of this
Agreement.
(k) Headings. Headings of paragraphs herein are inserted for convenience
of reference only and shall not affect the construction or interpretation of
this Agreement.
(l) Notice. Any notice required or permitted to be given under this
Agreement shall be delivered (i) by hand, (ii) by registered or certified mail,
postage prepaid, return receipt requested, to the address of the other party
provided immediately below, or to such other address as a party may designate by
written notice in accordance with this Section 15(i), (iii) by overnight courier
with proof of delivery, (iv) by email to an officer of such party, with
confirming return email, or (v) by fax with confirming letter mailed under the
conditions described in (ii) above.
"Supplier"
Lindows, Inc
9333 Genessee Ave , Suite 300
San Diego, CA 92121
USA
FAX: +1 (858) 587-8095
"Distributor"
Questar Srl
Via Maglio del Lotto 2
24126 Bergamo BG
Italy
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<PAGE>
EXHIBIT 10.13
FAX: +39 (035) 420-1498
(m) Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes all prior
agreements relating thereto, written or oral, between the parties. Amendments to
this Agreement must be in writing, signed by the duly authorized officers of the
parties. This Agreement may be executed in counterparts and delivered by
facsimile, all of which shall together be effective as a single original.
(n) Governing Law. 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. This Agreement shall not be
governed by the U.N. Convention on Contracts for the International Sale of
Goods, the application of which is expressly excluded. Nothing in this Agreement
is intended or will be construed to give any person (other than Licensor and
Licensee) any legal or equitable right, remedy or claim under this Agreement or
any provision hereof.
(o) Attorney's Fees. In the event a dispute arises regarding this
Agreement, the prevailing party shall be entitled to its reasonable attorney's
fees and expenses incurred in addition to any other relief to which it is
entitled.
(p) Further Assurances. Both parties agree to execute such additional
documents and perform such acts as are reasonably necessary to effectuate the
intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the Effective Date.
"Supplier" "Distributor"
LINDOWS, INC QUESTAR SRL
By: /s/ Kevin Carmony By: /s/ David G. Orban
--------------------------------- ---------------------------
Name: Kevin Carmony Name: David G. Orban
--------------------------------- ---------------------------
Title: Pres./COO Title: CEO
--------------------------------- ---------------------------
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<PAGE>
EXHIBIT 10.13
EXHIBIT "A"
"PRODUCT"
SOFTWARE - (IN OBJECT CODE FORM ONLY)
LindowsOS (OEM Version)
LindowsOS (Retail Version)
LindowsOS (Developer Version)
LindowsOffice with StarSuite
LindowsLive (CD)
Lindows Laptop Edition
SERVICES
LindowsPlus Membership
VirusSafe
SurfSafe
DOCUMENTATION
17
<PAGE>
EXHIBIT 10.13
EXHIBIT B
LindowsOS End User License Agreement
BETWEEN LINDOWS, INC. ("LINDOWS") AND EITHER (1) A FAMILY END-USER ("FAMILY") --
AN INDIVIDUAL END-USER AGREEING TO A FAMILY EDITION LICENSE FOR PERSONAL USE AND
USE BY MEMBERS OF SUCH INDIVIDUAL'S HOUSEHOLD OR (2) A BUSINESS END-USER
("BUSINESS") AGREEING TO A BUSINESS EDITION LICENSE FOR AN AGREED UPON NUMBER OF
SEATS OR NUMBER OF SIMULTANEOUS USERS, BUT NOT BOTH. THE FAMILY OR THE BUSINESS
("YOU" OR "YOUR"), AS APPROPRIATE, AGREES TO CAREFULLY READ THIS LICENSE
AGREEMENT (THIS "AGREEMENT") BEFORE INSTALLING OR USING THE LINDOWSOS SOFTWARE
PRODUCT (INCLUDING ALL ACCOMPANYING DOCUMENTATION, ENHANCEMENTS, UPGRADES AND
EXTENSIONS THERETO "LINDOWSOS"). INSTALLING OR OTHERWISE USING THIS PRODUCT
INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE
BOUND BY AND COMPLY WITH ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT,
PROMPTLY RETURN LINDOWSOS (WITHOUT INSTALLING IT) TO PLACE OF PURCHASE AND ANY
MONEY YOU HAVE PAID FOR LINDOWSOS WILL BE RETURNED.
SELECTING THE "I ACCEPT THIS AGREEMENT" OPTION FURTHER CONFIRMS YOUR ACCEPTANCE
OF ALL TERMS CONTAINED IN THIS AGREEMENT.
1. LICENSE.
1.1 License.
a. Family License: If You are a Family or Individual, You agree to the following
terms of this Section 1.1.a: LindowsOS is a modular operating system made up of
individual software components (each individual software component and all
accompanying documentation, enhancements, upgrades and extensions thereto are
referred to herein as "Software Program(s)") that were created either by Lindows
or various individuals and entities ("Third Parties"). Subject to the terms and
conditions of this Agreement, Lindows grants You a non-exclusive license to use
the object code form of LindowsOS for Your personal use in accordance with the
accompanying documentation. You may download and use LindowsOS on multiple
computers owned, leased or rented by You; provided, however, You and members of
Your Household (a "Household" consists of those individuals that currently
reside with You) are the only individuals with the right to use Your licensed
copy(ies) of LindowsOS. For example, if You have a desktop computer at home and
a laptop computer which You travel with, You may download a copy of LindowsOS on
both machines for the personal use of members of Your Household and You. You
agree that You are responsible for the members of Your Household's compliance
with the terms of this Agreement as though they were You and had agreed to all
terms and conditions herein. Except as otherwise expressly set forth herein, You
may not (and shall not allow any member of Your Household or any other Third
Party to) (i) remove any product identification or other notices; (ii) copy
LindowsOS (other than for back-up purposes, for Your personal use on Your
multiple machines as set forth in this Section 1.1.a, or for archival purposes);
(iii) provide, lease, lend, use for timesharing or service bureau purposes or
otherwise use or allow others to use LindowsOS to or for the benefit of Third
Parties, or (iv) modify LindowsOS or incorporate LindowsOS into or with other
software, except as may be provided for in this agreement.
b. Business License:If You are a Business, You agree to the following terms of
this Section 1.1.b: LindowsOS is a modular operating system made up of
individual software components (each individual software component and all
accompanying documentation, enhancements, upgrades and extensions thereto are
referred to herein as "Software Program(s)") that were created either by Lindows
or various individuals and entities ("Third Parties"). Subject to the terms and
conditions of this Agreement, Lindows grants You a non-exclusive license for
Your authorized users to use the object code form of LindowsOS for Your internal
business purposes on Business owned, rented or leased computers in accordance
with the accompanying documentation for: (1) solely up to the number of
Simultaneous Users purchased by You as set forth at
www.lindows.com/businesslicense, regardless of the number of Business owned,
rented or leased computers that You download LindowsOS on or (2) solely up to
the number of Seats purchased by You as set forth at
www.lindows.com/businesslicense. "Simultaneous Users" refers to authorized users
that may use LindowsOS at the same time. A "Seat" is a single computer
processing unit or "CPU" (including computers with redundant processing
systems), whether LindowsOS is installed directly on that CPU or is served from
a centralized server. Except as otherwise expressly set forth herein, You and
Your authorized users may not (and shall not allow any Third Party or any of
Your authorized users to) (i) remove any product identification or other
notices; (ii) copy LindowsOS (other than for back-up purposes, for use on
multiple Seats as set forth in this Section 1.1.b, or for archival purposes);
(iii) provide, lease, lend, use for timesharing or service bureau purposes or
otherwise use or allow others to use LindowsOS to or for the benefit of Third
Parties, or (iv) modify LindowsOS or incorporate LindowsOS into or with other
software, except as may be provided for in this agreement. You shall keep a
current record of the location of each copy of LindowsOS You make.
1.2 Third Party Agreements. Many of the Software Programs included in LindowsOS
are distributed under the terms of agreements with Third Parties ("Third Party
Agreements") which may expand or limit Your rights to use certain Software
Programs as set forth in Section 1.1. Certain Software Programs may be licensed
(or sublicensed) to You under the GNU General Public License and other similar
open source license agreements ("OSLAs") which, among other rights, permit You
to copy, modify and redistribute certain Software
18
<PAGE>
EXHIBIT 10.13
Programs, or portions thereof, and have access to the source code of certain
Software Programs, or portions thereof. In addition, certain Software Programs,
or portions thereof, may be licensed (or sublicensed) to You under terms
stricter than those set forth in Section 1.1. Please review visit
www.lindows.com/licensing for the on-line documentation that accompanies certain
Software Programs, or portions thereof, for the applicable Third Party
Agreements. To the extent any Third Party Agreements require that Lindows
provide rights to use, copy or modify a Software Program that are broader than
the rights granted in Section 1.1, then such rights shall take precedence over
the rights and restrictions granted in this Agreement solely for such Software
Programs.
1.3 Violation of Licensing Terms. Any violation by You of the applicable license
terms set forth in Section 1.1 or Section 1.2, as appropriate, shall immediately
terminate Your license to use LindowsOS. If You do not agree to comply with and
be bound by the terms of the applicable license agreement(s), do not install,
distribute or otherwise use LindowsOS.
2. PROPRIETARY RIGHTS.
All right, title and interest in LindowsOS, including source code,
documentation, appearance, structure and organization, are held by Lindows
and/or its licensors and are protected by copyright and other laws. You may not
copy or otherwise use LindowsOS, in whole or in part, except as expressly
permitted in this Agreement. Title to LindowsOS, or to any copy, modification or
merged portion of any of the Software Programs, shall at all times remain with
Lindows and/or its licensors, subject to the terms of the applicable Third Party
Agreement(s) to the Software Programs under consideration.
3. TRADEMARKS
"Lindows.com" and "LindowsOS" are registered trademarks of Lindows.com, Inc.,
All Rights Reserved. "Linux" is a registered trademark of Linus Torvalds. All
other trademarks are the property of their respective owners. While certain
Third Party Agreements described in Section 1.2 may allow You to copy, modify
and distribute certain Software Programs, they do not permit You to distribute
the Software Programs utilizing Lindows.com's trademarks.
4. LIMITED WARRANTY.
IF LINDOWSOS WAS DISTRIBUTED TO YOU BY LINDOWS OR A LINDOWS AUTHORIZED
DISTRIBUTOR ON CD-ROM OR OTHER TANGIBLE STORAGE MEDIA, LINDOWS WARRANTS THAT THE
STORAGE MEDIA IN THIS PRODUCT WILL BE FREE FROM DEFECT IN MATERIALS AND
WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE THAT
YOU ACQUIRE IT. IF SUCH A DEFECT OCCURS, RETURN THE MEDIA TO LINDOWS AT,
LINDOWS.COM, INC., 9333 GENESEE AVE., SAN DIEGO, CA 92121, AND LINDOWS WILL
REPLACE IT FREE OF CHARGE. THIS REMEDY IS YOUR EXCLUSIVE REMEDY FOR BREACH OF
THIS WARRANTY.
EXCEPT WHERE SPECIFICALLY STATED OTHERWISE IN THIS AGREEMENT, LINDOWSOS,
INCLUDING WITHOUT LIMITATION EACH SOFTWARE PROGRAM, IS PROVIDED TO YOU ON AN "AS
IS" BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS AND LINDOWS EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR
OTHERWISE. ANY WARRANTY OR REMEDY PROVIDED UNDER THIS AGREEMENT EXTENDS ONLY TO
THE PARTY WHO PURCHASES A LICENSE TO LINDOWSOS FROM LINDOWS OR A LINDOWS
AUTHORIZED DISTRIBUTOR.
Some jurisdictions do not allow the exclusion of implied warranties, so the
above exclusion may not apply to You. You may have other rights which vary from
jurisdiction to jurisdiction.
5. LIMITATION OF LIABILITY.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF LINDOWSOS IS ASSUMED BY
YOU. NEITHER LINDOWS NOR ITS APPOINTED DEALERS, SUPPLIERS OR LICENSEES SHALL
HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL
OR ECONOMIC LOSS, EVEN IF LINDOWS OR SUCH DEALER, SUPPLIER OR LICENSEE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE. OUR MAXIMUM
AGGREGATE LIABILITY TO YOU AND THAT OF OUR DEALERS AND SUPPLIERS FOR DIRECT
DAMAGES SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR LINDOWSOS. THE LIMITATIONS
IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A
BREACH OF A FUNDAMENTAL CONDITION OR TERM OR A FUNDAMENTAL BREACH.
Some jurisdictions do not allow the limitation or exclusion of liability for
incidental or consequential damage, so the above limitation may not apply to
You.
6. DISTRIBUTION.
If You are permitted to redistribute any Software Programs under an appropriate
OSLA, it is Your responsibility to comply with all export laws, rules and
regulations in the jurisdictions where the Software Programs are exported from,
exported to, or re-exported from time to time.
7. TERM.
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<PAGE>
EXHIBIT 10.13
This Agreement is effective until terminated. You may terminate this license at
any time by destroying all copies of LindowsOS. The Agreement will terminate
automatically if You fail to comply with any term or condition of the Agreement.
The provisions of Sections 1.2 (regarding OSLAs that remain in force) and 2 - 8,
shall survive termination.
8. GENERAL.
This Agreement, together with the Third Party Agreements, is the entire
agreement regarding Your use of LindowsOS, superseding any other agreement or
discussions, oral or written, and may not be changed except by a signed
agreement. Except as set forth in the appropriate OSLA, You may not assign Your
rights or obligations under this Agreement without the prior consent of Lindows.
This Agreement shall be governed by and construed in accordance with the laws of
the State of California, excluding that body of law applicable to choice of law
and excluding the United Nations Convention on Contracts for the International
Sale of Goods and any legislation implementing such Convention, if otherwise
applicable. The sole jurisdiction and venue for actions related to the subject
matter hereof shall be the state and federal courts located in San Diego County.
In any action to enforce this Agreement, the prevailing party shall be entitled
to costs and attorneys' fees. If any provision of this Agreement is declared by
a Court of competent jurisdiction to be invalid, illegal, or unenforceable, such
a provision shall be severed from the Agreement and the other provisions shall
remain in full force and effect. At no time shall a failure or delay in
enforcing any provisions, exercising any option or requiring performance, be
construed to be a waiver.
20
<PAGE>
EXHIBIT 10.13
EXHIBIT "C"
LINDOWS BRANDING GUIDELINES
BRANDING FEATURES
To be provided on request.
TRADEMARK NOTICES
The Branding Features are trademarks and service marks of Lindows. The Branding
Features shall be accompanied by the superscript "TM" or "(R)" symbol, as
specified by Lindows, which must appear to the immediate right of the Branding
Features. The footnote "LindowsOS is the trademark of Lindows, Inc." or "Lindows
is the trademark of Lindows, 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
Distributor may only use the Branding Features as an indication that the
Software is being offered to end users via distribution pursuant to this
Agreement. Distributor 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, Inc., Distributor shall use
the name "Lindows." 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 C. Distributor 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.
Distributor 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 Distributor 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.
21