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Exhibit 10.63
CONFIDENTIAL
CODEWEAVERS OEM PRODUCT AGREEMENT
This OEM
Product Agreement, dated September 20, 2004 ("Effective Date"),
is made between CodeWeavers, Inc.
("CodeWeavers"), a Minnesota corporation with
offices at 2356 University Avenue W, Suite
420, St. Paul Minnesota 55114 and
Gupta Technologies, LLC ("Purchaser"), a
Delaware limited liability company with
offices at 975 Island Drive, Redwood
Shores, CA 94065.
RECITALS
A.
CodeWeavers is in the business of developing and marketing
software
products and services for Linux-based
systems, including the Embedded Products,
as defined below.
B.
Purchaser is in the business of, among other things, marketing
Software
Product, as defined below.
C.
Purchaser desires to acquire, and CodeWeavers desires to grant
Purchaser the right and license to embed
the Embedded Products in the Software
Product for use in combination with the
Software Product.
CodeWeavers and Purchaser agree as follows:
1.
DEFINITIONS.
In addition to terms defined elsewhere in this Agreement, the
following capitalized terms used in this
Agreement have the following meanings
for all purposes in this Agreement:
1.1 "CodeWeavers End User License Agreement" means the
CodeWeavers
standard form of license agreement
applicable to the Embedded Product, as such
form of license agreement is modified by
CodeWeavers from time to time. A copy
of the applicable CodeWeavers End User
License Agreement shall be included in
electronic form with each copy of the
Embedded Product delivered to Purchaser.
1.2 "Distributor Sublicense" means the right granted by Purchaser
to
a Distributor (as defined in Section 2.1)
to sell or otherwise distribute
Sublicenses. Each Sublicense a Distributor
is authorized to sell or otherwise
distribute from time to time shall
constitute one Sublicense for purposes
hereof. In each instance, Purchase shall
specify the number of Sublicenses that
a Distributor is authorized to sell or
otherwise distribute from time to time.
1.3 "Embedded Product" means CodeWeavers' software product
specified
in Exhibit A hereto, as the same may be
amended from time to time.
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CONFIDENTIAL
1.4 "End User" means any person or business or other entity or
group
which obtains Software Product into which
the Embedded Product is embedded or
the right to use any such Software Product
from Purchaser or Purchaser's
Distributors (as defined in Section
2.1).
1.5 "Intellectual Property Rights" means patent rights,
copyright
rights, (including, but not limited to,
rights in audiovisual works and moral
rights), trade secret rights and any other
intellectual property recognized by
the law of each applicable
jurisdiction.
1.6 "Marks" means CodeWeavers' trademarks, trade names, service
marks, and/or service names specified in
Exhibit A.
1.7 "Multiple Sublicense" means the right granted by Purchaser,
directly or through any Distributor, to a
business or other entity or group
under which more than one natural person
shall have the right to use the
Embedded Product. Each Multiple Sublicense
shall expressly specify the number of
Sublicenses that are included in the
Multiple Sublicense.
1.8 "Software Product" means Purchaser's Product into which the
Embedded Product is to be embedded, as
specified in Exhibit A hereto.
1.9 "Sublicense" means each right granted by Purchaser to any
End
User to use the Embedded Product in
combination with the Software Product, each
Sublicense granted under a Multiple
Sublicense and each Sublicense Purchaser has
authorized any Distributor (as defined in
Section 2.1) to sell or otherwise
distribute. Each Sublicense shall be
granted by Purchaser, directly or through
any Distributor, only to a single End User
who is a natural person. The right of
each natural person to use the Embedded
Product under any Multiple Sublicense
shall constitute one Sublicense for
purposes hereof.
2.
LICENSES.
2.1 Grant of License. Subject to all the terms and conditions
of
this Agreement, CodeWeavers hereby grants
to Purchaser, and Purchaser hereby
accepts a non-exclusive, non-transferable,
worldwide, perpetual, royalty-free
license to reproduce, market, and
distribute unlimited copies of the Embedded
Products to its Distributors and End-Users
and to grant Sublicenses. Said
license shall apply to Embedded Product
only for use in combination with, and/or
embedded in, Software Product and any
executables generated by the Software
Product on Linux. Purchaser may Sublicense
the Embedded Product only to those
End Users who agree to the terms of the
CodeWeavers End User License Agreement.
Purchaser may not Sublicense the Embedded
Products to third parties for further
sublicensing to others, except that
Purchaser may authorize Original Equipment
Manufacturers, Value Added Resellers or
System Integrators and other parties
(collectively, the "Distributor(s)") to
sell or otherwise distribute Sublicenses
for use of the Embedded Product in
combination with the Software Product alone
or in connection with the sale or
distribution of the Software Product in
combination with other products or
services. As a condition to authorizing any
Distributor to sell or otherwise distribute
Sublicenses, Purchaser shall require
each Distributor to agree in writing to be
bound by, observe and perform all
obligations of Purchaser hereunder, except
the payment obligations of Purchaser
under Section 3.
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CONFIDENTIAL
2.2 End User License. Purchaser and each Distributor may not
sell,
license, sublicense or distribute in any
manner any Products to any End User
unless such End User has received and
agrees to the terms of the applicable End
User License Agreement for the Embedded
Product. CodeWeavers will provide the
End User License Agreement for the Embedded
Product to Purchaser within 10 (ten)
days of the Effective Date.
2.3 No Reverse Engineering. Purchaser or its Distributors will
not
disassemble, decompile, or reverse engineer
any CodeWeavers Embedded Products or
other products of CodeWeavers.
2.4 No Copying. Purchaser or its Distributors will not copy or
otherwise reproduce any Embedded Products,
in whole or in part, except for
making reasonable numbers of back-up copies
or for distribution to End Users as
expressly authorized by this Agreement.
2.5 No Unauthorized Derivative Works. Purchaser or its
Distributors
will not modify any Embedded Products in
any manner, except as it may be
expressly directed by CodeWeavers in
writing.
2.6 Authorized Derivative Works. CodeWeavers understands that
Purchaser may, from time to time, make or
suggest modifications to the Embedded
Product and request that such modifications
be incorporated into the Embedded
Products. CodeWeavers agrees to review any
such modifications and, if it
determines that the modifications are
appropriate, to incorporate them into the
Embedded Product. Such acceptance will be
solely at CodeWeavers' discretion, but
shall not be unreasonably withheld. Any
such modifications provided to
CodeWeavers by Purchaser must be provided
with a license grant that allows
CodeWeavers to have full and clear use of
the Embedded Product. In the case of
code for the Wine Project, the Wine license
(the LGPL) will be sufficient. For
changes provided to non open source
components of the Embedded Product,
Purchaser must provide CodeWeavers with
full and unconstrained rights to use the
modifications, including, but not limited
to, the right to further modify, copy,
and license the modifications.
2.7 Bankruptcy Considerations. If CodeWeavers becomes the subject
of
an involuntary petition in bankruptcy or
any involuntary proceeding relating to
insolvency, receivership, liquidation, or
composition for the benefit of
creditors, if such petition or proceeding
is not dismissed within sixty (60)
days of filing, Purchaser is granted
perpetual license to use the Embedded
Product, including the right to make
modifications to the Embedded Product.
CodeWeavers agrees to provide for escrow of
source code or other reasonable
steps to insure that purchaser has access
to the source code to the Embedded
Product. CodeWeavers will make such
provisions in a timely fashion after request
by Purchaser, but Purchaser must pay the
full and complete cost of all efforts
by CodeWeavers to provide such escrow or
other mechanism, including any and all
escrow costs, administrative costs, and
other associated overhead. The
determination of appropriate costs will be
at CodeWeavers discretion, but such
pricing will not exceed a reasonable
accounting of CodeWeavers actual costs.
2.8 Limited Rights. Purchaser's rights to sublicense the
Embedded
Products will be limited to those expressly
granted in this Agreement.
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CONFIDENTIAL
2.9 Non-Compete Clause. Purchaser will not build or develop
products
that compete with the Embedded Products
offered by CodeWeavers during the term
of this Agreement, or any renewals thereof,
and for a period of 12 months after
the termination of this Agreement
2.10 Open Source Software. Nothing in this agreement will
restrict
Purchaser from making royalty-free copies
of those portions of CodeWeavers
Embedded Products that are open source
software, to the extent that copying is
permitted under the applicable open source
licenses including, but not limited
to, Wine and tcltk.
3.
PAYMENTS, REPORTS, AND RECORDS.
3.1 Payments; Reports. For Purchaser's license and the other
rights
granted to Purchaser hereunder, Purchaser
will pay CodeWeavers as per the terms
described in Exhibit A, PAYMENT TERMS, and
PAYMENT SCHEDULE.
3.2 Transportation Charges. Should any Embedded Product or
other
CodeWeavers deliverable need to be shipped
to Purchaser, all shipping or other
transportation charges for delivery of the
Embedded Products or other
CodeWeavers deliverables to Purchaser,
including insurance and special
packaging, will be paid by Purchaser, FOB
Origin.
3.3 Purchaser's Records. Purchaser will maintain accurate books
and
records, during the term of this Agreement
and for one (1) year after the
termination or expiration of this
Agreement, regarding the Sublicensing of the
Embedded Products and distribution of the
Software Products by Purchaser to all
End-Users and Distributors.
4.
DELIVERY OF EMBEDDED PRODUCT; MAINTENANCE, SUPPORT, AND
TRAINING.
4.1 By Purchaser. Purchaser is not obligated to provide
technical
support, phone support, updates, or
upgrades for the Software Product;
notwithstanding the foregoing, if any such
support is provided for the Software
Product it will be Purchaser's
responsibility.
4.2 By CodeWeavers. During the term of this Agreement,
CodeWeavers
will provide Purchaser with versions of the
Embedded Product as specified in
Exhibit A. Except as provided otherwise in
this Agreement or in a separate
written agreement, CodeWeavers shall not be
responsible for providing support of
the Embedded Product to Distributors or End
Users directly. CodeWeavers' support
of the Embedded Product will be limited to
providing Purchaser with:
(a) error corrections for the Embedded Products as reported by
End Users to Purchaser,in accordance with
CodeWeavers' error correction policies
as stated on
www.codeweavers.com/site/support, which policies CodeWeaver
reserves the right to modify from time to
time;
(b) updates and enhancements for the Embedded Products to the
extent and at the same time that
CodeWeavers generally provides such updates and
enhancements to
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CONFIDENTIAL
end users of CodeWeavers' products without
separately charging for such updates
and enhancements;
(c) access to CodeWeavers' email "hot-line" for inquiries from
Purchaser relating to theCodeWeavers
Embedded Products.
4.3 Waiver of Certification Fee. CodeWeavers agrees to waive
its
Certification Fee in consideration of
Purchaser's payment of the Certification
Services fees under the Desktop Linux
Certification and Services Agreement
entered into by and between the parties on
the Effective Date.
5.
CONFIDENTIALITY.
5.1 Definition. "Confidential Information" means the (i) terms
of
this Agreement, (ii) the Embedded Products
and the Software Product and all
techniques, concepts, and methods relating
thereto, (iii) any other technical,
marketing, competitive, pricing or other
information disclosed under this
Agreement, and (iv) all information
identified by either party as proprietary or
confidential.
5.2 Obligations. Each party agrees:
(a) that it will not disclose to any third party or use any
Confidential Information except as
expressly permitted in this Agreement;
(b) that it will take all reasonable measures to maintain the
confidentiality of all Confidential
Information in its possession or control,
which will in no event be less than the
measures it uses to maintain the
confidentiality of its own information of
similar importance; and
(c) neither party may at any time issue any press release about
this Agreement, the relationship between
the parties as documented in this
Agreement, and its terms or its existence
without the prior written approval of
the other party.
5.3 Exceptions. "Confidential Information" will not include
information that:
(a) is in or enters the public domain without breach of this
Agreement;
(b) either party lawfully receives from a third party without
restriction on disclosure and without
breach of any nondisclosure obligation; or
(c) either party develops independently without reference to
the
Confidential Information; or
(d) either party can demonstrate was in its possession or
control, without restrictions on use or
disclosure, at the time of its
disclosure hereunder.
5.4 Injunctive Relief. Each party acknowledges that the
Confidential
Informa
