Software License AgreementTHE SANTA CRUZ OPERATION, INC. (“SCO”) HEREBY GRANTS TO YOU THE SPECIAL SOFTWARE LICENSE AGREEMENT STATED BELOW ONLY FOR THE PURPOSES STATED IN THIS SPECIAL SOFTWARE LICENSE AGREEMENT. BY DOWNLOADING, INSTALLING, OR USING THE ANCIENT UNIX SOURCE CODE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SPECIAL SOFTWARE LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. THE SANTA CRUZ OPERATION, INC. SPECIAL SOFTWARE LICENSE AGREEMENT FOR ANCIENT UNIX SOURCE CODE (AGREEMENT) A. THE SANTA CRUZ OPERATION, INC., a California corporation (SCO), having an office at 400 Encinal Street, Santa Cruz, California 95061-1900 and you as LICENSEE, agree that, as of the Effective Date hereof, as defined in Section 7.1, the terms and conditions set forth in this AGREEMENT shall apply to use by LICENSEE of SOURCE CODE PRODUCTS subject to this AGREEMENT. B. SCO makes certain licensing rights for SOURCE CODE PRODUCTS available under this AGREEMENT, including rights to make and use DERIVED BINARY PRODUCTS. Such SOURCE CODE PRODUCT is identified in Section 3 of this AGREEMENT . C. This AGREEMENT sets forth the entire agreement and understanding between the parties as to the subject matter hereof and merges all prior discussions between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein or as duly set forth on or subsequent to the date of acceptance hereof in writing and signed by a proper and duly authorized representative of the party to be bound thereby. No provision appearing on any form originated by LICENSEE shall be applicable unless such provision is expressly accepted in writing by an authorized representative of SCO. D. The AUTHORIZED COUNTRY for this AGREEMENT shall be any countries not excluded by Section 5.2 I. DEFINITIONS 1.1 AUTHORIZED COUNTRY means one or more countries specified above. 1.2 CPU means a computer having one or more processing units and a single global memory space. 1.3 COMPUTER PROGRAM means any instruction or instructions for controlling the operation of a CPU. 1.4 DERIVED BINARY PRODUCT means COMPUTER PROGRAMS in OBJECT CODE format based on a SOURCE CODE PRODUCT. 1.5 DESIGNATED CPU means all CPUs licensed as such for a specific SOURCE CODE PRODUCT. 1.6 OBJECT CODE means a COMPUTER PROGRAM in binary form, resulting from the compilation of SOURCE CODE by computer or compiler into machine executable code and which is in a form of computer programs not convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by computer. 1.7 SOURCE CODE means COMPUTER PROGRAMS written in certain programming languages in electronic media form and in a form convenient for reading and review by a trained individual, such 1.8 SOURCE CODE PRODUCT means a SCO software offering, primarily in SOURCE CODE form. Such offering may also include OBJECT CODE components. 1.9 SUCCESSOR OPERATING SYSTEM means a SCO software offering that is (i) specifically designed for a 16-Bit computer, or (ii) the 32V version, and (iii) specifically excludes UNIX System V and 2. GRANT OF RIGHTS 2.1 (a) SCO grants to LICENSEE a personal, nontransferable and nonexclusive right to use, in the AUTHORIZED COUNTRY, each SOURCE CODE PRODUCT identified in Section 3 of this AGREEMENT, solely for personal use (as restricted in Section 2.1(b)) and solely on or in conjunction with DESIGNATED CPUs, and/or Networks of CPUs, licensed by LICENSEE through this SPECIAL SOFTWARE LICENSE AGREEMENT for such SOURCE CODE PRODUCT. Such right to use (b) Personal use is limited to noncommercial uses. Any such use made in connection with the development of enhancements or modifications to SOURCE CODE PRODUCTS is permitted only if (i) neither the results of such use nor any enhancement or modification so developed is intended primarily for the benefit (c) LICENSEE may produce printed and on-line copies of documentation included with the SOURCE CODE PRODUCT as necessary for use with the DESIGNATED CPUs. All copies must include a legally sufficient copyright notice and a statement that the documents include a portion or all of SCO’s copyrighted documentation, which is being reproduced with permission. (d) Commercial use by LICENSEE of SOURCE CODE PRODUCTS or of any result, enhancement or modification associated with the use of SOURCE CODE PRODUCTS under this AGREEMENT is not permitted. Such commercial use is permissible only pursuant to the terms of an appropriate commercial software agreement between SCO or a corporate affiliate thereof and LICENSEE. For purposes of this AGREEMENT, commercial use includes, but is not limited to, furnishing copies to third parties in a manner not permitted by Section 8.4(b). (e) SCO also grants LICENSEE a personal, nontransferable and nonexclusive right to make copies of DERIVED BINARY PRODUCTS and, subject to U. S. Government export requirements and to Section 8.4(b), to furnish such copies directly to other LICENSEES who have an equivalent Software License with SCO before or at the time of furnishing each copy of a DERIVED BINARY PRODUCT. 2.2 (a) Any notice acknowledging a contribution of a third party appearing in a SOURCE CODE PRODUCT shall be included in corresponding portions of DERIVED BINARY PRODUCTS made by LICENSEE. (b) Each portion of a DERIVED BINARY PRODUCT shall include an appropriate copyright notice. Such copyright notice may be the copyright notice or notices appearing in or on the corresponding portions of the SOURCE CODE PRODUCT on which such DERIVED BINARY PRODUCT is based or, if copyrightable changes are made in developing such DERIVED BINARY PRODUCT, a copyright notice 2.3 No right is granted hereunder to use any trademark of SCO (or a corporate affiliate thereof). However, LICENSEE must state in packaging, labeling or otherwise that a DERIVED BINARY PRODUCT is derived from SCO’s software under license from SCO and identify such software (including any trademark, provided the proprietor of the trademark is appropriately identified). LICENSEE agrees not to use a name or trademark for a DERIVED BINARY PRODUCT that is confusingly similar to a name or trademark used by SCO (or a corporate affiliate thereof). 2.4 A single back-up CPU may be used as a substitute for the DESIGNATED CPU without notice to SCO during any time when such DESIGNATED CPU is inoperative because it is malfunctioning or undergoing repair, maintenance or other modification. 3. LICENSED SOURCE CODE PRODUCTS The SOURCE CODE PRODUCTS to which SCO grants rights under this AGREEMENT are restricted to the following UNIX Operating Systems, including SUCCESSOR OPERATING SYSTEMs, that operate on the 16-Bit PDP-11 CPU and early versions of the 32-Bit UNIX Operating System with specific exclusion of UNIX System V and successor operating systems: 16-Bit UNIX Editions 1, 2, 3, 4, 5, 6, 7 32-bit 32V 4. DELIVERY SCO makes no guarantees or commitments that any SOURCE CODE PRODUCT is available from SCO. If available, and upon acceptance by LICENSEE of the terms of this AGREEMENT, SCO will provide LICENSEE one (1) copy of such SOURCE CODE PRODUCT via its FTP site established for such purpose. 5. EXPORT 5.1 LICENSEE agrees that it will not, without the prior written consent of SCO, export, directly or indirectly, SOURCE CODE PRODUCTS covered by this AGREEMENT to any country outside of the AUTHORIZED COUNTRY. 5.2 LICENSEE acknowledges that the SOURCE CODE PRODUCTS, the media, and any immediate product (including processes) produced directly by the use of any such SOURCE CODE PRODUCTS are subject to export controls under the U.S. Export Administration Regulations and the export regulations of other countries. LICENSEE may not export or re-export, directly or indirectly, the SOURCE CODE PRODUCTS, the media, any related technical information or materials covered by this AGREEMENT, or any immediate product (including processes) produced directly by the use of any such SOURCE CODE PRODUCTS to any country that is in violation of U.S. Export Administration Regulations and/or the export regulations of other countries unless an appropriate authorization from the U.S. Commerce Department and any other relevant government authority has been obtained. 5.3 LICENSEE agrees that its obligations under Sections 5.1 and 5.2 shall survive and continue after any termination of rights under this AGREEMENT. 6. FEES AND TAXES 6.1 The rights granted to LICENSEE for use of the SOURCE CODE PRODUCTS identified in Section 3 above are granted to LICENSEE at no charge. 6.2 LICENSEE shall pay all taxes (and any related interest or penalty), however designated, imposed as a result of the existence or operation of this AGREEMENT, except (i) any tax imposed upon SCO (or a corporate affiliate thereof) in the jurisdiction in which LICENSEE is located if such tax is allowable as a credit against United States income taxes of SCO (or such an affiliate) and (ii) any income tax imposed upon SCO (or such an affiliate) by the United States or any governmental entity within the United States proper (the fifty (50) states and the District of Columbia). To assist in obtaining the credit identified in (i) of this Section 6.2, LICENSEE shall furnish SCO with such evidence as may be required by United States taxing authorities to establish that any such tax has been paid. If SCO is required to collect a tax to be paid by LICENSEE, LICENSEE shall pay such tax to SCO on demand. 7. TERM 7.1 This AGREEMENT shall become effective on and as of the date of acceptance of the terms of this AGREEMENT. The initial term of this AGREEMENT shall be for one (1) year. Thereafter, the AGREEMENT will automatically renew for successive one (1) year terms unless either party gives the other, no later than ninety (90) days before the end of the initial term, or then current extension, written notice of its intent to terminate this AGREEMENT. Nothing in this AGREEMENT shall be construed to require either party to extend this AGREEMENT beyond the initial term or any subsequent term. 7.2 LICENSEE may terminate its rights under this AGREEMENT by written notice to SCO certifying that LICENSEE has discontinued use of and returned or destroyed, at SCO’s option, all copies of SOURCE CODE PRODUCTS subject to this AGREEMENT. 7.3 If LICENSEE fails to fulfill one or more of its obligations under this AGREEMENT, SCO may, upon its election and in addition to any other remedies it might have, at any time terminate all the rights granted by it hereunder to LICENSEE. Upon such termination LICENSEE shall immediately discontinue use of and return or destroy, at SCO’s option, all copies of SOURCE CODE PRODUCTS in its possession. 7.4 In the event of termination of LICENSEE’s rights under Sections 7.2 or 7.3, (i) all fees that LICENSEE has become obligated to pay shall become immediately due and payable and (ii) SCO shall have no obligation to refund any amounts paid to it hereunder. 8. MISCELLANEOUS PROVISIONS 8.1 This AGREEMENT shall prevail notwithstanding any conflicting terms or legends which may appear in a SOURCE CODE PRODUCT. 8.2 SCO warrants that it is empowered to grant the rights granted herein. SCO and other developers make no other representations or warranties, expressly or impliedly. By way of example but not of limitation, SCO and other developers make no representations or warranties of merchantability or fitness for any particular purpose, or that the use of any SOURCE CODE PRODUCT will not infringe any patent, copyright or trademark. SCO and other developers shall not be held to any liability with respect to any claim by LICENSEE, or a third party on account of, or arising from, the use of any SOURCE CODE PRODUCT. 8.3 Neither the execution of this AGREEMENT nor anything in any SOURCE CODE PRODUCT shall be construed as an obligation upon SCO or any other developer to furnish any person, including LICENSEE, any assistance of any kind whatsoever, or any information or documentation. 8.4 (a) LICENSEE agrees that it shall hold all parts of the SOURCE CODE PRODUCTS subject to this AGREEMENT in confidence for SCO. LICENSEE further agrees that should it make such disclosure of any or all of such SOURCE CODE PRODUCTS (including methods or concepts utilized therein) to anyone to whom such disclosure is necessary to the use for which rights are granted hereunder, LICENSEE shall appropriately notify each such person to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence and have each such person sign a confidentiality agreement containing restrictions on disclosure substantially similar to those set forth herein. If LICENSEE should become aware of a violation of SCO’s intellectual property and/or proprietary rights, LICENSEE shall promptly notify SCO and cooperate with SCO in such enforcement. If information relating to a SOURCE CODE PRODUCT subject to this AGREEMENT at any time becomes available without restriction to the general public by acts not attributable to LICENSEE, LICENSEE’s obligations under this section shall not apply to such information after such time. (b) Notwithstanding the provisions of Section 8.4(a), LICENSEE may make available copies of a SOURCE CODE PRODUCT, either in modified or unmodified form, to third parties in the AUTHORIZED COUNTRY having Source Code Licenses of the same scope herewith from SCO for the same SOURCE CODE PRODUCT, if and only if (i) LICENSEE first requests verification of the status of the recipient by contacting SCO at the address contained in Section 8.8(a) or other number specified by SCO, and (ii) SCO gives written verification of the recipient’s software license status. LICENSEE shall maintain a record of each such SOURCE CODE PRODUCT made available. 8.5 On SCO’s request, but not more frequently than annually, LICENSEE shall furnish to SCO a statement, listing the location, type and serial number of the DESIGNATED CPU hereunder and stating that the use by LICENSEE of SOURCE CODE PRODUCTS subject to this AGREEMENT has been reviewed and that each such SOURCE CODE PRODUCT is being used solely on the DESIGNATED CPU (or temporarily on a back-up CPU) for such SOURCE CODE PRODUCTS in full compliance with the provisions of this AGREEMENT. 8.6 The obligations of LICENSEE under Section 8.4 shall survive and continue after any termination of rights under this AGREEMENT. 8.7 Neither this AGREEMENT nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by LICENSEE and any purported assignment or transfer shall be null and void. 8.8 (a) Correspondence with SCO relating to this AGREEMENT shall be sent to: THE SANTA CRUZ OPERATION, INC. Attention: Law and Corporate Affairs 8.9 LICENSEE shall obtain all approvals from any governmental authority in the AUTHORIZED COUNTRY required to effectuate this AGREEMENT according to its terms, including any such approvals required for LICENSEE to make payments to SCO pursuant to this AGREEMENT. LICENSEE shall bear all expenses associated with obtaining such approvals. 8.10 The construction and performance of this AGREEMENT shall be governed by the laws of the State of California, USA. Last revised May 12, 2000 |