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- THE SANTA CRUZ OPERATION, INC.
- SPECIAL SOFTWARE LICENSE AGREEMENT FOR ANCIENT UNIX SOURCE CODE
-
- Agreement Number: ________________
- (to be assigned by SCO upon acceptance)
-
- A. THE SANTA CRUZ OPERATION, INC., a California corporation
- (SCO), having an office at 400 Encinal Street, Santa Cruz,
- California 95061-1900 and LICENSEE, as defined in the signature
- block of this Agreement 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 merge 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.
-
- F. The AUTHORIZED COUNTRY for this Agreement shall be ______________________.
-
-
- IN WITNESS WHEREOF, the parties have caused this Agreement to be
- executed by their duly authorized representatives.
-
-
- LICENSEE: THE SANTA CRUZ OPERATION, INC.
-
- __________________________________ By:_________________________________
- Name Title
-
- __________________________________ ____________________________________
- Address Printed name and title
-
- __________________________________ ____________________________________
- Address
-
- __________________________________ ____________________________________
- Address Date
-
- __________________________________
- By
-
- __________________________________
- Print or Type Name and title
-
- __________________________________
- Phone and FAX, please
-
- __________________________________
- Email address - required
-
-
- I. DEFINITIONS
-
- 1.1 AUTHORIZED COUNTRY means one or more countries specified on
- page 1 of this Agreement.
-
- 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
- as a printed or written listing of programs, containing specific
- algorithms, instructions, plans, routines and the like, for
- controlling the operation of a computer system, but which is not
- in a form that would be suitable for execution directly on
- computer hardware.
-
- 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 (ii) specifically excludes UNIX System V and
- successor operating systems.
-
- 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
- includes the right to modify such SOURCE CODE PRODUCT and to
- prepare DERIVED BINARY PRODUCT based on such SOURCE CODE PRODUCT,
- provided that any such modification or DERIVED BINARY PRODUCT
- that contains any part of a SOURCE CODE PRODUCT subject to this
- Agreement is treated hereunder the same as such SOURCE CODE
- PRODUCT. SCO claims no ownership interest in any portion of such
- a modification or DERIVED BINARY PRODUCT that is not part of a
- SOURCE CODE PRODUCT.
-
- (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
- of a third party and (ii) any copy of any such result,
- enhancement or modification, furnished by LICENSEE to a third
- party holder of an equivalent Software License with SCO where
- permitted by Section 8.4(b) below, is furnished for no more than
- the cost of reproduction and shipping. Any such copy that
- includes any portion of a SOURCE CODE PRODUCT shall be subject to
- the provisions of such Section 8.4.
-
- (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
- identifying the owner of such changes.
-
- 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 other wise 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, SCO will, within a
- reasonable time after SCO receives the fee specified in this
- Agreement for a SOURCE CODE PRODUCT, furnish to LICENSEE one (1)
- copy of such SOURCE CODE PRODUCT.
-
- 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 hereby assures SCO that it does not intend to and
- will not knowingly, without the prior written consent, if
- required, of the Office of Export Administration of the U.S.
- Department of Commerce, Washington, D.C. 20230, transmit,
- directly or indirectly:
-
- (i) any SOURCE CODE PRODUCT subject to this Agreement; or
-
- (ii) any immediate product (including processes) produced
- directly by the use of any such SOURCE CODE PRODUCT;
-
- to Afghanistan, the People's Republic of China or any Group Q, S,
- W, Y or Z country specified in Supplement No. 1 to Section 370
- of the Export Administration Regulations issued by the U.S.
- Department of Commerce.
-
- 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 In consideration for the rights granted to LICENSEE for use
- of the SOURCE CODE PRODUCTS identified in Section 3 above,
- LICENSEE shall pay to SCO a one-time Right-to-Use Fee of
- US$100.00 for the DESIGNATED CPUs at the time this Agreement is
- returned to SCO for final execution.
-
- 6.2 Payment to SCO shall be made in United States dollars to SCO
- at the address specified in Section 8.8(a).
-
- 6.3 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, including, but not
- limited to, any tax which LICENSEE is required to withhold or
- deduct from payment to SCO, except (i) any tax imposed upon SCO
- (or a corporate affiliate thereof) in the jurisdiction in which
- the aforesaid office of 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 5.05, 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. The
- Fee specified in Section 6.1 above do not include taxes. 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 by SCO. 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 by not less than two (2)
- months' written notice to LICENSEE specifying any such breach,
- unless within the period of such notice all breaches specified
- therein shall have been remedied; 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 If, and only if, SCO is the entity that provides SOURCE CODE
- PRODUCT to LICENSEE, SCO warrants for a period of ninety (90)
- days from furnishing a SOURCE CODE PRODUCT to LICENSEE hereunder,
- that any magnetic medium on which portions of a SOURCE CODE
- PRODUCT are furnished will be free under normal use from defects
- in materials, workmanship or recording. If such a defect appears
- within such warranty period LICENSEE may return the defective
- medium for replacement without charge. Replacement is LICENSEE's
- sole remedy with respect to such a defect. SCO also 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 the status of the recipient
- by contacting SCO at the address contained in Section 8.8(b) 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
- (a) 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.
-
- (b) SCO shall have the right, upon reasonable notice to LICENSEE
- and through SCO's accredited auditing representative, to make an
- on-site inspection during normal business hours, not more
- frequently than annually, of all LICENSEE's CPUs to determine
- that SOURCE CODE PRODUCTS are being used solely on the DESIGNATED
- CPU and are used solely for personal purposes as authorized under
- 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) Payments to SCO under this Agreement shall be made in US
- dollars, by credit card (VISA, American Express, or Mastercard
- ONLY), International Money Order, or check drawn on U.S. bank
- payable to:
-
- THE SANTA CRUZ OPERATION, INC.
- P.O. Box 7745
- San Francisco, CA 94120-7745
-
- (b) Correspondence with SCO relating to this Agreement shall be
- sent to:
-
- THE SANTA CRUZ OPERATION, INC.
- 400 Encinal Street
- Santa Cruz, California 95061-1900
- United States of America
-
- Attention: Law and Corporate Affairs
-
- (c) Any statement, notice, request or other communication shall
- be deemed to be sufficiently given to the addressee and any
- delivery hereunder deemed made when sent by certified mail
- addressed to LICENSEE at its office specified in this Agreement
- or to SCO at the appropriate address specified in this Section
- 7.7. Each party to this Agreement may change an address relating
- to it by written notice to the other party.
-
- 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.
-
-
-
- SCO-Soft. Sp.-030998
-