Author: Peter Galli
LindowsOS(TM) and Lindows.com(TM) are not endorsed by nor affiliated with
Microsoft Corporation® in any way.
THIS AGREEMENT (“Agreement”) is entered into 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 you (“Licensee”).
SELECTING THE “I ACCEPT THIS AGREEMENT” OPTION CONFIRMS YOUR ACCEPTANCE OF ALL
TERMS CONTAINED IN THIS AGREEMENT AND ESTABLISHES TODAY AS YOUR “EFFECTIVE
DATE.”
BUILDER’S PROGRAM OVERVIEW
FOR:
Membership Fee** of $500 dollars US per year &
Monthly Licensing Fee** of $500 dollars US per month
(Limited Time Offer: First month FREE)
YOU GET:
During each month in which a Fee is paid, the License
to pre-install or bundle LindowsOSTM on as many
complete computer systems as you want, authorization
to use Lindows.com / LindowsOSTM branding for
promotional purposes, and unlimited access to the
Builder’s Program Resource Area to assist you in
installing, selling and supporting LindowsOSTM.
*Complete Terms & Conditions are defined by this Agreement.
**All fees are payable in advance by credit card only.
WHEREAS, Lindows.com has the right to license LindowsOSTM specified below as
Lindows.com Software Product;
and
WHEREAS, the parties desire that Lindows.com license to Licensee the Lindows.com
Software Product: (i) to bundle (by including CDs containing the Lindows.com
Software Product) with certain Licensee Product(s) and/or (ii) to install the
Lindows.com Software Product onto the hard drives of certain Licensee
Product(s); for purposes of making Composite Product(s), as defined below, for
distribution by Licensee, 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 agree as follows:
1. DEFINITIONS: All definitions below or elsewhere in this Agreement shall apply
both to the singular and plural forms, as the context may require.
1.1 “Composite Product” means products offered by Licensee for distribution
or direct resale herein that result from Licensee’s (i) installation of the
Lindows.com Software Product onto the hard drives of Licensee Products and/or
(ii) bundling of the Lindows.com Software Product (by including CDs containing
the Lindows.com Software Product) with Licensee Product(s).
1.2 “End-User” means an individual or organization that acquires products
for personal use and not for reselling or distribution.
1.3 “GPL” means the GNU General Public License available at
http://www.gnu.org/copyleft/gpl.html. Certain Software Programs, or portions
thereof, included in the Lindows.com Software Product are distributed under the
GPL, and other similar open source license agreements, which contain terms that
expand (or restrict) your rights to use certain portions of the Lindows.com
Software Product. The GPL permits you to copy, modify and redistribute certain
portions of the Lindows.com Software Product and have access to the source
code. Please visit www.lindows.com/licensing for the on-line documentation,
source code, and other information about all such Software Programs included in
the Lindows.com Software Product. To the extent the GPL requires that
Lindows.com provide rights to use, copy or modify a Software Program that are
broader than the rights granted elsewhere in this agreement, then such rights
granted shall take precedence over the rights and restrictions set forth in
this Agreement.
1.4 “Licensee Branding Features” means Licensee’s proprietary trade names,
trade dress, service marks, trademarks, logos, and indicia of origin and other
distinctive branding features.
1.5 “Licensee Product(s)” means any new computer system with a motherboard,
CPU, hard drive, case and video card and tested that Licensee builds.
1.6 “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.
1.7 “Lindows.com Software Product” means certain computer programs and
related documentation and interface specifications produced, owned, and/or
licensed by Lindows.com, as more specifically set forth at
http://www.lindows.com/lindows_products.php.
1.8 “Lindows.com Software Product Deliverables” means the Lindows.com
Software Product as delivered to Licensee via electronic download. Lindows.com
will make available for electronic download a master of the Lindows.com
Software Product at the Builder website http://builder.lindows.com.
1.9 “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.
1.10 “Registration Data.” means the data records submitted by End-Users of
Composite Product(s) and received by Licensee as part of the registration
process: first name, last name, and email address.
1.11 “Reseller” means a company or organization that distributes software
and/or hardware products directly to End-Users.
1.12 “Software Programs” means individual software components, each
individual software component and all accompanying documentation, enhancements,
upgrades and extensions thereto that were created either by Lindows.com or
various individuals and entities.
1.13 “Update” means a release of the Lindows.com Software Product that is
developed and designated by or on behalf of Lindows.com. Updates will be
available through electronic download from the Lindows.com Builder website
http://builder.lindows.com.
2. LINDOWS.COM SOFTWARE PRODUCT LICENSE AND RESTRICTIONS: Subject to the terms
and conditions hereof and only for the term hereof, Lindows.com hereby grants
to Licensee a nontransferable limited right and license solely to install the
Lindows.com Software Product in executable form on, or bundle the Lindows.com
Software Product with, Licensee Product(s) to make Composite Product(s) for
distribution and resale only; with exception to Section 19 regarding broader
rights granted for certain Software Programs in the Lindows.com Software
Product. This license does not allow or authorize Licensee to sell or resell
Lindows.com Software Products separate from the Composite Product(s). For
clarification, any references to “sale(s),” “resale(s), “selling” or
“reselling” of the Composite Product(s) or the Lindows.com Software Product in
this Agreement, refers only to the sale of the Licensee Product(s) or the media
upon which the Lindows.com Software Product is licensed or distributed. The
Lindows.com Software Product may only be licensed or sublicensed under this
Agreement, according to the terms set forth herein. In no instance shall the
Lindows.com Software Product, or the Software Programs underlying the
Lindows.com Software Product, be sold under this Agreement.
3. REPRODUCTION LICENSE: Subject to the terms and conditions hereof, Lindows.com
hereby grants to Licensee the nontransferable limited right and license to
reproduce, and copy the Lindows.com Software Product solely to bundle with or
install onto finished Composite Product units suitable for marketing and
distribution in accordance with the terms and conditions hereof; with exception
to Section 19 regarding broader rights granted for certain Software Programs in
the Lindows.com Software Product. Subject to the terms and conditions of this
Agreement, Licensee is authorized to ship an unlimited number of Composite
Product(s), per month, as long as the Monthly Licensing Fee is received by
Lindows.com for such month in advance in accordance with Section 11.
4. DISTRIBUTION LICENSE, SUBLICENSES, RESTRICTIONS: Subject to the terms and
conditions hereof and only for the term hereof, Lindows.com hereby grants to
Licensee the limited, nontransferable right and license solely to use,
reproduce, publicly display, publish, and distribute the Composite Product(s),
including only the executable form of the Lindows.com Software Product as part
of the Composite Products(s), and only through authorized distribution
channel(s). Licensee is authorized to grant sublicenses solely as set forth
below; with exception to Section 19 regarding broader rights granted for
certain Software Programs in the Lindows.com Software Product.
4.1 SUBLICENSE TERMS FOR END-USERS
4.1.1 LINDOWSOS(TM) LICENSE AGREEMENT: For all End-Users and in
connection with the distribution of all Composite Products, Licensee shall
include the LindowsOSTM License Agreement at http://www.lindows.com/eula, which
must be agreed to by the End-User before the End-User can make use of the
Lindows.com Software Product installed or bundled therein. The LindowsOSTM
License Agreement shall be included: (i) in the “terms of use” to be
incorporated into Licensee web sites and/or (ii) as a “shrink-wrapped” or
“click-wrapped” license agreement that clearly notifies the End-User that the
use of the Lindows.com Software Product, as installed in or bundled with the
Composite Product(s), is subject to the LindowsOSTM License Agreement and
permits the End-User to indicate assent either by opening the product package
or by clicking on a designated button or link.
4.1.2 WARRANTIES: Licensee shall not be authorized to grant any warranty
binding Lindows.com regarding the performance, condition, title,
non-infringement, merchantability, fitness for a particular purpose, system
integration, or data accuracy of the Composite Product(s). Licensee shall
disclaim all warranties implied by law as permitted by applicable law. If
Licensee grants an express warranty binding Licensee regarding the performance
and/or condition of the Composite Product(s), such express warranty shall not
exceed the scope of, or be inconsistent with, any express warranty given by
Lindows.com for the Lindows.com Software Product.
4.2 SUBLICENSE AND RESTRICTIONS FOR RESELLERS: Each sublicense granted by
Licensee to Resellers shall (i) grant rights no greater in scope than the
license rights provided herein, and (ii) provide licensing restrictions no less
restrictive than those provided herein; provided, however, each Reseller shall
be authorized to grant sublicenses only to End-Users and not to other
Resellers. Each sublicense granted by Licensee to Resellers must also contain
language substantially similar to Section 19 regarding broader rights granted
for certain Software Programs in the Lindows.com Software Product.
4.2.1 PROPRIETARY RIGHTS PROVISIONS: Each sublicense granted by Licensee
to Resellers shall contain (i) an acknowledgment that although copyrighted, the
Composite Product(s) embody valuable trade secrets proprietary to Licensee
and/or Licensee’s suppliers, and (ii) a covenant prohibiting disassembly,
decompilation and reverse engineering of the Lindows.com Software Product, or
modification, installation or incorporation of the Lindows.com Software Product
into other software with exception to Section 19 regarding broader rights
granted for certain Software Programs in the Lindows.com Software Product.
4.2.2 WARRANTIES: Licensee shall not be authorized to grant any warranty
binding Lindows.com regarding the performance, condition, title,
non-infringement, merchantability, fitness for a particular purpose, system
integration, or data accuracy of the Composite Product(s). Licensee shall
disclaim all warranties implied by law as permitted by applicable law. If
Licensee grants an express warranty binding Licensee regarding the performance
and/or condition of the Composite Product(s), such express warranty shall not
exceed the scope of, or be inconsistent with, any express warranty given by
Lindows.com for the Lindows.com Software Product.
4.2.3 LIMITATION OF LIABILITY: In each sublicense granted by Licensee to
Resellers, Licensee shall on behalf of itself and all of its suppliers and
licensors, disclaim any and all liability for incidental, indirect, special,
statutory, punitive and consequential damages (including, but not limited to
damages for loss of good will, loss of data, loss of performance, lost revenue,
lost prospective economic advantage or lost revenue or profit) as permitted by
applicable law, irrespective of whether or not such damages are foreseeable or
such licensee was advised of the possibility of such damages.
5. AUTHORIZED DISTRIBUTION CHANNELS: The distribution license granted above is
granted both (i) for distribution by Licensee to End-Users located throughout
the World, in a single tier consisting only of distribution directly to
End-Users, and (ii) for distribution by Licensee through Resellers located
throughout the world directly to End-Users located throughout the World.
6. BRANDING REQUIREMENTS, BRANDING LICENSE: Licensee shall incorporate
Lindows.com Branding Features and designated Lindows.com copyright notice
without modification into the Composite Product(s). Licensee is not authorized
to incorporate Licensee Branding Features into the Lindows.com Software
Product, but Licensee may incorporate Licensee Branding Features in its
discretion into Licensee web pages that feature Composite Product(s). All
distribution rights and licenses granted herein for Composite Product(s) are
subject to the forgoing branding requirements. Subject to the terms and
conditions hereof, and only for term hereof, Lindows.com hereby grants to
Licensee the limited nontransferable right and license to publicly display
Lindows.com Branding Features on Composite Product(s) for purposes of promoting
and marketing Composite Product(s). For a Licensee “Custom Welcome Message
Screen” at the startup of a Composite Product, Licensee may only use the
Lindows.com and LindowsOSTM logos in accordance with the license set forth in
this Section 6. Licensee shall not remove or destroy any Licensee Branding
Features, proprietary markings, confidential legends placed upon or contained
within the Lindows.com Software Products or any related materials.
7. NON-EXCLUSIVE LICENSES: All licenses granted herein are non-exclusive.
Lindows.com may grant licenses to third parties who may compete with Licensee,
in connection with the distribution (or other uses licensed herein) of the
Lindows.com Software Product.
8. EXPORT: Lindows.com Software Products, including associated technical data,
are subject to United States export control laws, and may be subject to export
or import regulation in other countries. Licensee agrees to comply strictly
with all such regulations, and acknowledges that it has the responsibility to
obtain such licenses to export, re-export, or import Composite Product(s).
Licensee shall, at its own expense, obtain and arrange for the maintenance in
full force and effect of all governmental approvals, consents, licenses,
authorizations, declarations, filings and registrations as may be necessary or
advisable for the performance of the terms and conditions of this Agreement,
including without limitation, fair trade approvals.
9. RESERVATION OF RIGHTS: All rights not expressly granted to Licensee herein
are expressly reserved by Lindows.com.
10. SUPPORT OBLIGATIONS: Lindows.com shall perform the following obligations at
its cost and expense, unless otherwise indicated.
10.1 GENERAL SUPPORT OPTIONS: Lindows.com will provide eSupport at
Support.Lindows.com (http://support.lindows.com) where End-Users will be able
to find answers to frequently asked questions, search the knowledge base,
participate in forums, provide feedback and receive answers to their questions.
10.2 LICENSEE SUPPORT OPTIONS: Licensee may use Support.Lindows.com, or
e-mail Lindows.com at: builders@lindows.com, where their e-mail will be
reviewed and responded to by Lindows.com customer support personnel.
10.3 PREMIUM SUPPORT OPTIONS: Lindows.com may, at its sole discretion, offer
“Premium Support” options that provide additional support contact methods and
mediums, extended support hours, escalated support, or other support-related
options.
11. MEMBERSHIP FEE AND MONTHLY LICENSING FEES: Licensee shall pay to Lindows.com
an Membership Fee and Monthly Licensing Fees as follows:
11.1 “MEMBERSHIP FEE” OF $500 US: Membership Fees are paid in advance on an
basis on the anniversary of the Effective Date.
11.2 “MONTHLY LICENSING FEE” OF $500 US: Fees are paid in advance on a
monthly basis on the date of the Effective Date and follow the terms set in
Section 24, Term Of Agreement.
11.3 PAYMENT METHODS AND TERMS: Payments are by credit card only. A late fee
of one percent (1%) per month or the highest rate allowed under the law,
whichever is lower, shall be assessed against overdue amounts more than thirty
(30) days past the date of invoice. Licensee acknowledges and agrees that
Lindows.com does not take any responsibility to calculate, report or remit
sales or use taxes which may be assessed, due or owing to the taxing
authorities of any jurisdiction for transactions that arise in connection with
this Agreement. Licensee acknowledges and agrees that it is solely responsible
for the calculation, collection and remittance of any applicable taxes that may
be incurred or assessed in connection with this Agreement, other than taxes
based on Licensee’s income.
11.4 RIGHT TO CHANGE TERMS: Lindows.com reserves the right to change these
terms at any time at its sole discretion and upon notice to Licensee. If
Lindows.com changes the terms, the Licensee may, at its sole discretion,
continue under their existing terms through the balance of their agreement, or
change to the new terms immediately.
12. LICENSEE’S RESALE POLICIES: Licensee is free to determine is own pricing for
Composite Product(s). Licensee is free to determine its own resale policies
for Composite Product(s) so long as such resale policies do not violate this
Agreement or applicable laws, rules and regulations.
13. REGISTRATION DATA: Each of the parties represents and warrants that neither
party shall violate any rights of any person or entity, including, without
limitation, rights of publicity, privacy or personality through each party’s
collection or use of Registration data.
14. LIMITED PERFORMANCE WARRANTY: For a period of thirty (30) days after the
delivery of the Lindows.com Software Product to Licensee, Lindows.com warrants
to Licensee that such Lindows.com Software Product Deliverables shall conform
to, and operate substantially in accordance with, documentation provided by
Lindows.com. Lindows.com will use commercially reasonable efforts to correct
any errors with the Lindows.com Software Product Deliverables, within a
commercially reasonable time after being notified of the error by Licensee.
THIS WARRANTY DOES NOT APPLY TO LINDOWS.COM SOFTWARE PRODUCT THAT HAVE BEEN
INCORPORATED, INTEGRATED OR MERGED WITH OTHER PRODUCTS OR CODE BY LICENSEE, NOR
TO LINDOWS.COM SOFTWARE PRODUCT THAT HAVE BEEN MODIFIED BY LICENSEE. LICENSEE’S
SOLE AND EXCLUSIVE REMEDY AND LINDOWS.COM’S SOLE AND EXCLUSIVE LIABILITY FOR
BREACH OF THIS WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF DEFECTIVE OR
NON-CONFORMING LINDOWS.COM SOFTWARE PRODUCT DELIVERABLES.
15. WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT
ALLOWED BY LAW, LINDOWS.COM ON BEHALF OF ITSELF AND ITS LICENSORS HEREBY
DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NONINFRINGEMENT, SYSTEM INTEGRATION, AND DATA ACCURACY.
LICENSEE ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION THAT IS NOT
EXPRESSLY SET OUT HEREIN.
16. LICENSEE REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION: Licensee
represents and warrants to Lindows.com that: (i) any and all sublicenses
granted by Licensee in connection with the Composite Product(s) shall be in
compliance with the sublicense terms set forth in Section 4; (ii) that the
Composite Products, or any actions taken by Licensee or its sublicenses
therewith, shall not infringe any third party Proprietary Rights; and (iii)
that bundling the Lindows.com Software Product with the Licensee Products or
installing the Lindows.com Software Product onto the Licensee Products shall
not infringe any third party Proprietary Rights. Licensee shall defend,
indemnify and hold harmless Lindows.com, its licensors, affiliates, successors,
assigns, officers, directors, and employees (“Indemnified Parties”) from and
against any and all claims, costs, damages, losses, liabilities, actions,
recoveries, judgments and expenses (including actual attorneys’ fees and
expenses regardless of whether litigation was commenced) arising out of or in
connection with a breach of any express representation and warranty made above
in this Section (a “Claim”), provided that: (a) upon becoming aware of such
Claim, the Indemnified Parties promptly notifies Licensee in writing of the
claim; (b) Licensee shall have exclusive control of the settlement or defense
of any action to which the Claim relates; and (c) the Indemnified Parties
cooperates with Licensee in every reasonable way to facilitate such defense or
settlement. Once given notice of such Claim, if Licensee does not defend any
such Claim, the Indemnified Parties may take any of the above actions and shall
be fully indemnified by the Licensee. Licensee shall not settle any claim that
shall materially adversely impact the Indemnified Parties without the
Indemnified Parties’ prior written consent.
17. DISCLAIMER OF DAMAGES: NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR
ANY OTHER PERSON, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), OR ANY
OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, PUNITIVE, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOOD WILL, LOSS OF DATA,
LOSS OF PERFORMANCE, LOST REVENUE, LOST PROSPECTIVE ECONOMIC ADVANTAGE OR LOST
PROFIT ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT,
IRRESPECTIVE OF WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY WAS
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LINDOWS.COM’S MAXIMUM LIABILITY FOR
DIRECT DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO
THE TOTAL AMOUNT OF LICENSING FEES PAID BY LICENSEE TO LINDOWS.COM HEREUNDER.
18. OWNERSHIP OF LINDOWS.COM SOFTWARE PRODUCT: All right, title and interest in
and to the Lindows.com Software Product and all Proprietary Rights embodied in
the Lindows.com Software Product and in the Lindows.com Software Product
Deliverables shall remain in and be the sole and exclusive property of
Lindows.com and/or its licensors; with exception to Section 19 regarding
broader rights granted for certain Software Programs in the Lindows.com
Software Product.
19. THIRD PARTY AGREEMENTS: Certain Software Programs included in the
Lindows.com Software Product are distributed under the terms of agreements with
third parties (“Third Party Agreements”) which may expand or limit rights to
use certain Software Programs as set forth herein. Certain Software Programs
may be licensed (or sublicensed) under the GNU General Public License and other
similar open source license agreements under which, among other rights,
Licensees are permitted to copy, modify and redistribute certain Software
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) under terms stricter than
those set forth herein. Please visit www.lindows.com/licensing
accompanies such 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 or stricter than the rights granted herein, then such rights shall take
precedence over the rights and restrictions granted in this Agreement solely
for such Software Programs.
20. OWNERSHIP OF LINDOWS.COM BRANDING FEATURES: Title to the Proprietary Rights
embodied in Lindows.com Branding Features shall remain in and be the sole and
exclusive property of Lindows.com. Licensee hereby acknowledges and agrees that
Licensee has no rights, 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 owner thereof, or (iv) take any action
inconsistent with Lindows.com’s ownership of the Lindows.com Branding Features.
21. UNILATERAL DISCLOSURE OF CONFIDENTIAL INFORMATION BY LINDOWS.COM
21.1 CONFIDENTIAL INFORMATION: The parties anticipate that Lindows.com may
disclose Confidential Information to Licensee. For purposes hereof,
“Confidential Information” means information of Lindows.com or its customers
(i) which relates to the Lindows.com Software Product and related business
models and plans, and technical information and data of Lindows.com or its
customers or suppliers, or (ii) which, although not related to the Lindows.com
Software Product, is nevertheless disclosed hereunder by Lindows.com or its
customers or an affiliate to Licensee in document or other tangible form
bearing an appropriate legend indicating its confidential or proprietary
nature, or which, if initially disclosed orally or visually is identified as
confidential at the time of disclosure and a written summary hereof, also
marked with such a legend, is provided to Licensee within thirty (30) days of
the initial disclosure. However, information disclosed to Licensee by
Lindows.com that is reasonably deemed to be of a confidential nature shall be
Confidential Information for purposes of this Agreement whether or not it is
identified as such in writing or by stamp. Licensee may use Confidential
Information of Lindows.com only 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 any case using no less than a reasonable degree of care.
Licensee may disclose Confidential Information received hereunder only as
reasonably required to perform its obligations under this Agreement and only to
its employees 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 21.
21.2 LIMITATIONS: The restrictions of this Agreement on use and disclosure
of Confidential Information shall not apply to information that Licensee can
document: (i) is in the possession or control of Licensee at the time of its
disclosure by Lindows.com to Licensee hereunder; (ii) is, or becomes publicly
known, through no wrongful act of Licensee; (iii) is received by Licensee from
a third party free to disclose it without obligation to Lindows.com; or (iv) is
independently developed by Licensee without reference to Confidential
Information.
21.3 GOVERNMENT USER: In the event Licensee is required by law, regulation
or court order to disclose Confidential Information, Licensee 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
Licensee 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 21.3 shall remain Confidential
Information or all other purposes.
22. PROTECTION OF LINDOWS.COM SOFTWARE PRODUCT: Notwithstanding the foregoing,
specifically regarding the Lindows.com Software Product, Licensee acknowledges
that the Lindows.com Software Product embodies valuable trade secrets
proprietary to Lindows.com. Accordingly, Licensee shall take reasonable
measures to protect the Lindows.com Software Product from unauthorized access,
disclosure, and use, including without limitation, the placement of any
Proprietary Rights notice on the Lindows.com Software Product that is
reasonably requested by Lindows.com. Licensee shall not: (i) distribute,
transfer, loan, rent, or provide access to the Lindows.com Software Product,
except as provided herein; or (ii) remove or add any Proprietary Rights notice
associated with the Lindows.com Software Product without the express written
permission of Lindows.com.
23. INJUNCTIVE RELIEF: 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 the aggrieved party shall be
entitled to specific performance and/or injunctive relief in addition to other
remedies at law or in equity. This Section 23 shall not be construed to
preclude either party from seeking equitable relief under any other Section of
this Agreement.
24. TERM OF AGREEMENT: The term of this Agreement shall commence as of the
Effective Date hereof and shall continue for twelve (12) months, unless
terminated earlier by either of the parties as described below. Fees will be
paid by automatic credit card transaction and charged at the beginning of each
month. Transactions will continue month over month until agreement is
terminated by either of the parties.
25. AUTOMATIC TERMINATION: Unless Licensee promptly, after discovery of the
relevant facts, notifies Lindows.com to the contrary in writing, this Agreement
will terminate immediately without notice upon the institution of insolvency,
bankruptcy, or similar proceedings by or against Licensee, any assignment or
attempted assignment by Licensee for the benefit of creditors, or any
appointment, or application for such appointment, of a receiver for Licensee.
26. TERMINATION: Either party may terminate this Agreement and all rights
granted herein for any reason after thirty (30) days from receipt of written
notice stating that this Agreement is to be terminated or through cancellation
through the official Builder’s section of the Lindows.com website
http//builder.lindows.com.
27. EFFECT OF EXPIRATION OF TERMINATION: Upon the expiration or termination
hereof, Licensee shall cease distributing Composite Product(s). Notwithstanding
anything to the contrary contained herein, sublicenses for all Composite
Product(s) in any form, including any Composite Product works based on
Lindows.com Software Product, granted by Licensee prior to the expiration date
or the effective date of termination of this Agreement shall remain in full
force and effect following such dates.
28. ARBITRATION: Except for actions to protect Proprietary Rights and to enforce
an arbitrator’s decision hereunder, all disputes, controversies, or claims
arising out of or relating to this Agreement or a breach thereof shall be
submitted to and finally resolved by arbitration under the rules of the
American Arbitration Association (“AAA”) then in effect. There shall be one
arbitrator, and such arbitrator shall be chosen by mutual agreement of the
parties in accordance with AAA rules. The arbitration shall take place in San
Diego, California, where the parties agree sole jurisdiction and venue for the
subject matter of this Agreement exists. This Agreement shall be construed
under the laws of the State of California, without regard to its conflicts of
law principles or the 1980 United Nations Convention on the International Sale
of Goods. The findings of the arbitrator shall be final and binding on the
parties, and may be entered in any court of competent jurisdiction for
enforcement. Notwithstanding anything contained above in this Section 28 to the
contrary, each party shall have the right to institute judicial proceedings
against the other party or anyone acting by, through or under such other party
in order to enforce the instituting party’s rights hereunder through specific
performance, injunction or similar equitable relief.
29. NOTICES: Any notice or communication required or permitted to be given
hereunder may be delivered by hand, deposited with an overnight courier, sent
by email or facsimile (provided delivery is confirmed), or U.S. Mail
(registered or certified only), return receipt requested, in each case to the
address set forth on the initial page hereof or at such other addresses as
shall be designated in writing by either party to the other in accordance with
this Section 29. Such notice will be deemed to be given when received.
30. ASSIGNMENT: Licensee shall not assign this Agreement or any right or
interest under this Agreement, nor delegate any work or obligation to be
performed under this Agreement, without Lindows.com’s prior written consent.
Any attempted assignment or delegation in contravention of this Section 30
shall be void and ineffective.
31. CONTUNUING OBLIGATIONS: The following obligations shall survive the
expiration or termination hereof: (i) any and all warranty disclaimers,
limitations of liability and indemnities granted by either party herein, (ii)
any covenant granted herein for the purpose of determining ownership of, or
protecting, the Proprietary Rights, including without limitation, the
confidential information of either party, or any remedy for breach thereof,
(iii) the payment of taxes, duties, or any money to Lindows.com hereunder and
(iv) Sections 1, 4.1.2, 4.2.1, 4.2.2, 4.2.3, 8, 9, 11.3, 11.4, 13-23, 27-34 and
36-37, by their terms.
32. INDEPENDENT CONTRACTORS: The relationship of the parties is that of
independent contractor, and nothing herein shall be construed to create a
partnership, joint venture, franchise, employment, or agency relationship
between the parties. Licensee shall have no authority to enter into agreements
of any kind on behalf of Lindows.com and shall not have the power or authority
to bind or obligate Lindows.com in any manner to any third party.
33. FORCE MAJEURE: Neither Lindows.com nor Licensee shall be liable for damages
for any delay or failure of delivery, except for any Membership Fees or Monthly
Licensing Fees due, arising out of causes beyond their reasonable control and
without their fault or negligence, including, but not limited to, Acts of God,
acts of civil or military authority, fires, riots, acts of terrorism, wars,
embargoes, or communications failures. Notwithstanding anything to the contrary
contained herein, if either party is unable to perform hereunder for a period
of thirty (30) consecutive days, then the other party may terminate this
Agreement immediately without liability by ten (10) days written notice to the
other.
34. TRADEMARKS: “Lindows.comTM” and “LindowsOSTM” 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 herein, may allow
Licensee to copy, modify and distribute certain Software Programs, they do not
permit Licensee to distribute the Software Programs, utilizing Lindows.com’s
Branding Features.
35. GENERAL OBLIGATION TO MARKET, PROMOTE, AND PUBLISH: Licensee shall undertake
commercially reasonable efforts to market, promote, and publish the Composite
Product(s).
36. PUBLICITY: Lindows.com shall be permitted to use the name of Licensee in
publicity releases, advertising, or similar activity without the prior written
consent of Licensee.
37. MISCELLANEOUS: This Agreement constitutes the entire understanding of the
parties with respect to the subject matter of this Agreement and merges all
prior communications, understandings, and agreements. This Agreement may be
modified only by a written agreement signed by the parties. The failure of
either party to enforce at any time any of the provisions hereof shall not be a
waiver of such provision, or any other provision, or of the right of such party
thereafter to enforce any provision hereof. In any action to enforce this
Agreement, the prevailing party shall be entitled to reasonable costs and
attorneys’ fees. If any provision specified in this Agreement shall be invalid
under any applicable law, the invalid provision, or portion thereof, shall be
struck and the remainder, if any, shall be deemed enforceable to the extent
permitted under applicable law, and the remaining provisions of this Agreement
shall be given effect in accordance with their terms.
