{"id":42564,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/master-services-agreement-linuxcare-inc-and-nec-software-ltd.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-services-agreement-linuxcare-inc-and-nec-software-ltd","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-services-agreement-linuxcare-inc-and-nec-software-ltd.html","title":{"rendered":"Master Services Agreement &#8211; Linuxcare Inc. and NEC Software Ltd."},"content":{"rendered":"<pre>                           MASTER SERVICES AGREEMENT\n\n     This agreement (\"Agreement\") is made as of June 1, 1999 (\"Effective Date\"),\nbetween Linuxcare, Inc., a Delaware corporation with an office at 650 Townsend\nStreet, San Francisco, CA 94103, USA (Phone: 415-354-4878; Fax: 415.701.7457)\n(\"Linuxcare\") and the \"Customer\" listed below.\n\nCustomer: NEC Software Ltd.                Contact: Atsuo Suzuki\nAddress:  1-18-6 Shinkiba Koutou-Ku        Phone:   +81-3-5569-3251\n          Tokyo 136-8608, Japan            Fax:     +81-3-5569-3308\n                                           E-Mail:  suzuki@d2.bsd.nes.nec.co.jp\n\n                             SERVICES INFORMATION\n \n                    Service Level:          Gold SLA as defined in Exhibit B\n                    Service Fee Period:     October 1, 1999 - September 30, 2000\n                    Service Incident Cap:   40\n                    Service Fee:            *    \n\n                               SERVICES PROVIDED\n\n     Subject to payment of all applicable fees, Linuxcare will use reasonable\ncommercial efforts to perform the support services specified in the Statement of\nWork (\"SOW\") attached hereto as Exhibit B (\"Services\") and incorporated herein,\nin accordance with the Terms and Conditions attached hereto as Exhibit A, and\nincorporated herein (collectively the \"Exhibits\"). Linuxcare may change the SOW,\nthe Service Fee, and the services that will be performed for a particular\nService Level, at any time; such changes will take effect at the beginning of\nthe next Service Fee Period. Customer understands that Linuxcare's performance\nis dependent in part on Customer's actions. Accordingly, any dates or time\nperiods relevant to performance of Services by Linuxcare shall appropriately and\nequitably extended to account for any delays resulting from changes to Customer\nproducts or otherwise due to Customer. Customer may request additional hours or\nlevels of Services (\"Extended Services\"), which Linuxcare may provide at\nLinuxcare's sole discretion, provided that Customer pays Linuxcare's then\ncurrent fees for such Extended Services.\n\n     The Exhibits contain, among other things, warranty disclaimers and\n     ------------------------------------------------------------------\nliability limitations. Any different or additional terms of any related purchase\n---------------------\norder, confirmation, or similar form even if signed by the parties after the\ndate hereof shall have no force or effect. References in this Agreement or the\nExhibits to a capitalized term appearing on this cover page shall have the\nmeaning or value of such term on this cover page.\n\nNEC Software: Linuxcare:\n\nBy: \/s\/ YOSHINARI FURUMICHI          By: \/s\/ Justin T. Powell\n\nName: YOSHINARI FURUMICHI            Name: Justin T. Powell\n      -------------------                  ----------------\n\nTitle: GENERAL MANAGER               Title: Director of Asia Pacific Operations\n       ---------------                      -----------------------------------\n\n[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n                                   EXHIBIT A\n\n                             TERMS AND CONDITIONS\n\n1.   Training. Subject to payment of all fees, Linuxcare will provide the\n     --------\n     training specified in Linuxcare's current, published \"Linuxcare Training\n     Programs\" documentation. Unless otherwise arranged between Customer and\n     Linuxcare, all training shall occur at Linuxcare's facilities in San\n     Francisco, California. The fees for training will be Linuxcare's current,\n     published training fees, less the Training Discount (\"Training Fees\").\n\n2.   Fees and Payment. Customer shall pay Linuxcare the fees for the selected\n     ----------------\n     Service Level shown in the Services Information section of this Master\n     Services Agreement for each Service Fee Period. (\"Service Fees\"). Customer\n     will pay the Service Fees for the initial Service Fee Period within 30 days\n     of the Effective Date. Customer will pay the Service Fees for subsequent\n     Service Fee Periods within 30 days after receipt of Linuxcare's invoice.\n     Customer will also pay Linuxcare all Training Fees and Extended Services\n     fees within 30 days after receipt of Linuxcare's invoice therefor. All\n     payments are non-refundable. Any payments over 15 days overdue will bear a\n     late payment fee of the lower of 1.5% per month of the outstanding balance\n     or the maximum rate allowed by law. Linuxcare shall refund to Customer any\n     amounts actually paid to Linuxcare by Customer which exceed amounts due\n     hereunder, minus any costs, fees, taxes, duties or other implications, if\n     any, arising in connection with such overpayment.\n\n3.   Proprietary Rights. As between the parties, Linuxcare will retain all\n     ------------------\n     right, title and interest in and to any software, tools, techniques, and\n     other materials used in connection with providing the Services (\"Linuxcare\n     Materials\"). As between the parties, Customer will retain all right, title\n     and interest in and to any software, products, documentation and other\n     materials it supplies. Linuxcare hereby assigns to Customer all right,\n     title and interest, in any work product created as part of the Services\n     (\"Work Product\"), but this assignment does not include any portion of the\n     Linuxcare Materials, and will not prevent Linuxcare from using the\n     expertise, ideas and know-how learned while performing Services for other\n     purposes (including, without limitation, for itself or on behalf of third\n     parties).\n\n4.   Confidential Information. Each party (\"receiving party\") agrees that all\n     ------------------------\n     code, inventions, algorithms, know-how and ideas and all other business,\n     technical and financial information it obtains from the other party\n     (\"disclosing party\"), but not including work product that is assigned to\n     Customer by Linuxcare pursuant to Section 3, are the confidential property\n     of the disclosing party (\"Confidential Information\" of the disclosing\n     party). Except with the consent of the disclosing party, the receiving\n     party shall hold in confidence and not use or disclose any Confidential\n     Information of the disclosing party for at least five (5) years after this\n     Agreement expires or otherwise terminates. The receiving party's\n     nondisclosure obligation shall not apply to information it can document:\n     (i) is generally available to the public other than through breach of this\n     Agreement; (ii) is rightfully disclosed to the receiving party by a third\n     party; (iii) is independently developed by the receiving party without use\n     of any Confidential Information of the disclosing party, or (iv) is\n     disclosed to pursuant to law or an order requirement, guidance, or request\n     of a court or government authority. Because of the unique and proprietary\n     nature of the Confidential Information, it is understood and agreed that\n     the disclosing party's remedies at law for a breach by the receiving party\n     of its obligations under this Section will be inadequate and that the\n     disclosing party shall be entitled to equitable relief (including without\n     limitation provisional and permanent injunctive relief and specific\n     performance). Nothing stated herein shall limit any other remedies provided\n     under this Agreement or available to the disclosing party at law. Upon\n     expiration or termination of this Agreement for any reason, each party will\n     return all copies of all Confidential Information of the other party in its\n     possession or control.\n\n5.   Termination. This Agreement will have an initial term of the earlier of one\n     -----------\n     year from the Effective Date or the date that Customer uses up its\n     Incidences under its Service Level (initial \"Service Fee Period\") and shall\n     automatically renew on each anniversary of the initial Service Fee Period\n     for subsequent Service Fee Periods (subject to payment of Linuxcare's then\n     current rates for additional Incidences) \n\n\n \n     unless terminated by either party. For the purposes of this Agreement,\n     \"Incident\" shall mean a single identified customer issue or problem. Each\n\n                                                                     Page 1 of 3\n\n\n \n     Incident is only valid during the Service Fee Period it was purchased in.\n     One call or e-mail may include multiple Incidents, and a single Incident\n     may require more than one call or e-mail to resolve. Either party may\n     terminate this Agreement upon thirty (30) days written notice to the other\n     party, except if Linuxcare is terminating the Agreement such termination\n     will not be effective until the end of any fully paid-up Service Fee\n     Period. Linuxcare may terminate this Agreement at any time in the case of\n     non-payment by Customer of any fees, unless Customer pays such fees in full\n     within ten (10) days after such notice. Sections 4, 5, 7, 8, and 9 of this\n     Agreement, and all accrued rights to payment, shall survive termination.\n     Termination is not an exclusive remedy and all other remedies will be\n     available whether or not termination occurs.\n\n6.   Warranty and Disclaimer. Linuxcare hereby warrants to Customer, and only\n     -----------------------\n     Customer, that all Services shall be performed in a professional and\n     workmanlike manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN AGREEMENT FOR\n     SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE FOREGOING,\n     LINUXCARE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES\n     RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES,\n     INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,\n     FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. LINUXCARE FURTHER\n     DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY\n     PROBLEM, OR THAT ANY WORK PRODUCT OF THE SERVICES WILL BE FREE FROM PROGRAM\n     ERRORS.\n\n7.   Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR\n     -----------------------\n     OTHERWISE, AND EXCEPT FOR BODILY INJURY, LINUXCARE SHALL NOT BE LIABLE OR\n     OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY\n     CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY:\n     (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT\n     HEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II) FOR ANY COST OF\n     PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III)\n     FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.\n\n8.   NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT\n     TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,\n     STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER\n     BEYOND ITS REASONABLE CONTROL, OR (II) FOR ANY INCIDENTAL, INDIRECT OR\n     CONSEQUENTIAL DAMAGES OR LOST PROFITS.\n\n9.   Legal Compliance. Customer shall comply with the U.S. Foreign Corrupt\n     ----------------\n     Practices Act and all applicable export laws, restrictions, and regulations\n     of the U.S. and foreign agency or authority. Each party agrees that it\n     shall comply with applicable law in performance of its obligations under\n     this Agreement.\n\n10.  Miscellaneous. This Agreement is not assignable or transferable by Customer\n     -------------\n     without the prior written consent of Linuxcare; any attempt to do so\n     shall be void. Linuxcare may assign this Agreement in whole or in part, or\n     subcontract the performance of Services to third parties. Services may be\n     used solely by Customer for Customer's internal use for Customer's own\n     benefit. The parties agree that they are independent contractors and that\n     this Agreement and relations between Linuxcare and Customer hereby\n     established do not constitute a, joint venture, agency or contract of\n     employment between them, or any other similar relationship. Neither party\n     has the right or authority to assume or create any obligation or\n     responsibility on behalf of the other. Any notice, report, approval or\n     consent required or permitted hereunder shall be in writing. No failure or\n     delay in exercising any right hereunder will operate as a waiver thereof,\n     nor will any partial exercise of any right or power hereunder preclude\n     further exercise. If any provision of this Agreement shall be adjudged by\n     any court of competent jurisdiction to be unenforceable or invalid, that\n     provision shall be limited or eliminated to the minimum extent necessary so\n     that this Agreement shall otherwise remain in full force and effect and\n     enforceable. Any waivers or amendments shall be effective only if made in\n     writing. This Agreement is the complete and exclusive statement of the\n     mutual understanding of the parties and supersedes and cancels all previous\n     written and oral agreements and communications relating to the subject\n     matter of this Agreement. The prevailing party in any action to enforce\n     this Agreement will be entitled to recover its attorney's fees and costs in\n     connection with such action.\n\n                                                                     Page 2 of 3\n\n\n \n11.  Governing Law and Jurisdiction. This Agreement which is in English, shall\n     ------------------------------\n     be interpreted in accordance with the commonly understood meaning of\n     the words and phrases hereof in the United States of America. Any dispute,\n     controversy or claim arising out of or relating to this Agreement or to a\n     breach thereof, including its interpretation, performance or termination,\n     shall be finally resolved by arbitration. The arbitration shall be\n     conducted in English and in accordance with the commercial rules of the\n     International Chamber of Commerce which shall administer the arbitration\n     and act as appointing authority. The arbitration, including the rendering\n     of the award, shall take place in San Francisco, California which shall be\n     the exclusive forum for resolving such dispute, controversy or claim. For\n     the purposes of this arbitration, the provisions of this Agreement and all\n     rights and obligations thereunder shall be governed and construed in\n     accordance with the laws of the State of California. United States of\n                                              ----------\n     America, without regard to the conflicts of laws provisions thereof. The\n     decision of the arbitrators shall be binding upon the parties hereto, and\n     the expense of the arbitration (including without limitation the award of\n     attorneys' fees to the prevailing party) shall be paid as the arbitrators\n     determine. The decision of the arbitrators shall be executory, and judgment\n     thereon may be entered by any court of competent jurisdiction.\n     Notwithstanding anything contained in this Paragraph, each party shall have\n     the right to institute judicial proceedings against the other party or\n     anyone acting by, through or under such other party in any federal or state\n     court located within the County of San Francisco, CA, USA in order to\n     enforce the instituting party's rights hereunder through reformation or to\n     obtain injunctive relief (\"Court Actions\"). Accordingly, each party agrees\n     to the exclusive and personal jurisdiction of the state and federal courts\n     located within the County of San Francisco, CA, USA for such Court Actions.\n\nNEC Software:                        Linuxcare:\n\nBy: \/s\/ YOSHINARI FURUMICHI          By: \/s\/ Justin T. Powell\n\nName: YOSHINARI FURUMICHI            Name: Justin T. Powell\n\nTitle: GENERAL MANAGER               Title: Director of Asia Pacific Operations\n\n                                                                     Page 3 of 3\n\n\n \n                                   EXHIBIT B\n\n                               STATEMENT OF WORK\n\nCONTROL\n\n     Document ID                    NES_SOW                                  \n     Location                       \/Documents\/Linuxcare\/NEC\/NES\/NES_SOW.doc \n     Originator                     Jay Powell                               \n     Issue Date                     9\/21\/1999                                \n     Status                         Approved                                 \n     Version                        1.0                                      \n \nDISTRIBUTION\n \n     Linuxcare                      Jay Powell, Jim Fisher\n     NES                            Atsuo Suzuki\n \n     VERSION                 MODIFIED BY   DATE      DESCRIPTION\n \n     0.1                     Jay Powell    08\/23\/99  Draft Proposal\n     0.2                     Jay Powell    09\/10\/99  Revised incident cap to by\n                                                     Suzuki-san of NES. as\n                                                     advised by Lawyers. lower\n                                                     price as proposed Minor\n                                                     formatting changes\n\n     1.0                     Jay Powell     9\/21\/99  Revised incident cap to\n                                                     proposed by Suzuki-san of\n                                                     lower price further as NEC.\n\n                                                                     Page 1 of 7\n\n\n \n                               TABLE OF CONTENTS\n                               -----------------\n\n\n                                                                 \n1      INTRODUCTION                                                3\n                                                                   \n2      RELATIONSHIP OBJECTIVES                                     4\n                                                                   \n   2.1  SHORT-TERM OBJECTIVES                                      4\n   2.2  LONG TERM OBJECTIVES                                       4\n                                                                   \n3      SERVICE PROPOSAL-SHORT-TERM (REF 2.1)                       5\n                                                                   \n   3.1  SLA SERVICES                                               5\n      3.1.1  Hours of Operation:                                   5\n      3.1.2  Distribution:                                         5\n      3.1.3  Platforms:                                            5\n      3.1.4  Phone, Web, e-mail support:                           5\n      3.1.5  Resolution or report:                                 5\n      3.1.6  First point of contact:                               6\n      3.1.7  Authorized customer contacts:                         6\n      3.1.8  Telnet access to customer's system:                   6\n      3.1.9  View Active Incident Status online:                   6\n     3.1.10  Software updates:                                     6\n     3.1.11  Access to Script library:                             6\n     3.1.12  Access to online configuration DB:                    6\n   3.2  PROBLEM REPORTING PROCEDURES                               6\n   3.3  SERVICE RESTRICTIONS                                       7\n   3.4  SOW SERVICE PERIOD AND RENEWAL                             7\n\n\n                                                                     Page 2 of 7\n\n\n \n1 INTRODUCTION\n\nThis NEC Software Statement of Work No. 99-1 (\"SOW\") effective October 1, 1999\nis agreed upon by sets forth the Agreement between Linuxcare Inc. (\"Linuxcare\")\nand NEC Software, Ltd. (\"NES\") regarding the services to be provided by services\nprovided by Linuxcare pursuant to the Master Services Agreement between\nLinuxcare and NES dated October 1, 1999.\n\nThis document is intended solely for NES and Linuxcare and is not be circulated\noutside of these organizations without written consent from Linuxcare Inc.\n\n                                                                     Page 3 of 7\n\n\n \n2    RELATIONSHIP OBJECTIVES\n\n2.1  SHORT-TERM OBJECTIVES\n\nNES and Linuxcare shall undertake a 12-month trial composed of standard Gold\nService Level Agreement (\"SLA\") back-line support for NES's Linux system\nintegration business. The Gold SLA as specified herein will ensure that the NES\nengineers are provided the support services that they require to provide the\nquality of their Linux based support solutions to their business partners.\nDuring this trial period Linuxcare and NES will evaluate their ability to work\ntogether in the Japanese market to encourage the growth of Linux based solutions\ndeployed in corporate Japan.\n\n2.2  LONG TERM OBJECTIVES\n\nAssuming successful conclusions of the above objectives (Ref. 2.1) Linuxcare and\nNES will evaluate NES entering into a \"Linuxcare Certified Partner\" program that\nincludes NES providing Linux Services across multiple lines of business\ncurrently offered by Linuxcare.\n\nClarification of these objectives shall occur following evaluation of the first\nyear support agreement and the short-term objectives defined above (Ref. 2.1).\nShould NES and Linuxcare decide to enter into a future agreement this shall\nrepresent a separate contract from this initial backline support agreement.\n\n                                                                     Page 4 of 7\n\n\n \n3 SERVICE PROPOSAL - SHORT-TERM (REF 2.1)\n\nLinuxcare will use reasonable commercial efforts to provide Gold SLA services,\nwhich for purposes of this SOW has been deemed \"Gold\" Service Level Agreement\n(\"SLA\") as further defined in Section 3.1. These services are to be used by NES\nto support NES's \"Customer Base\" from their Tokyo Linux support center.\n\"Customer Base\" shall mean those third party customers, which NES has a\ncontractual obligation to provide Linux operating support services as of the\neffective date of this SOW. Additional third party customers may be added to the\n\"Customer Base\" with the prior written permission of Linuxcare.\n\n3.1  SLA SERVICES\n\nThe Gold SLA is based on the following Linuxcare standard Gold SLA service\noptions set forth below:\n\n3.1.1  HOURS OF OPERATION:\n\n9am - 6pm (JST) weekdays excluding Japanese national holidays.\n\n3.1.2  DISTRIBUTION:\n\nDistribution support includes all major Distributions. Major Distributions are\ndefined as Caldera, Debian GNU\/Linux, Laser5 Linux, Linux-Mandrake, LinuxPPC,\nRed Hot, Slackware Linux, Stampede, SuSE, TurboLinux, UltraLinux, and Yellow\nDog.\n\n3.1.3  PLATFORMS:\n\nPlatforms that will be supported are the Alpha, Intel, MIPS, and SPARC\nplatforms, and such other platforms as Linuxcare may make generally available to\nits other Gold SLA service customers.\n\n3.1.4  PHONE, WEB, E-MAIL SUPPORT:\n\nTelephone, World Wide Web, and e-mail support services will be available during\nthe hours set forth above. Telephone support will be provided in the Japanese\nlanguage support subject to Linuxcare's ability (using commercially reasonable\nefforts) to staff its Japanese office with trained personnel. NES and Linuxcare\nwill cooperate, with each providing assistance and each at their own respective\ncost, to provide Japanese telephone support until such time as Linuxcare is able\nto appropriately staff its Japanese office with trained personnel. Linuxcare's\nshall have the right to use existing Japanese speaking staff based in its San\nFrancisco office to fulfill its obligations under this Section 3.1.4.\n\n3.1.5  RESOLUTION OR REPORT:\n\nResolution or report will be issued one (i) business day (as defined by the\nHours of Operation) following report of an incident to Linuxcare.\n\n                                                                     Page 5 of 7\n\n\n \n3.1.6  FIRST POINT OF CONTACT:\n\nThe first point of contact for NES will be a Linuxcare level 2 engineer (as\ndefined by Linuxcare).\n\n3.1.7  AUTHORIZED CUSTOMER CONTACTS:\n\nNES shall designate two (2) Authorized customer contacts and provide their names\nand contact information to Linuxcare. Linuxcare shall have no obligation to\nprovide support to NES personnel other than the NES Authorized customer\ncontacts.\n\n3.1.8  TELNET ACCESS TO CUSTOMER'S SYSTEM:\n\nTelnet access into the NES's support center servers provided to Linuxcare\nengineers at the discretion of NES, but at no additional cost to Linuxcare.\n\n3.1.9  VIEW ACTIVE INCIDENT STATUS ONLINE:\n\nLinuxcare shall make summary online incident reports available to NES for each\nincident reported to Linuxcare by NES.\n\n3.1.10  SOFTWARE UPDATES:\n\nSelected Linux software updates will be made available to NES through the\nLinuxcare web site (http:\/\/www.linuxcare.com). NES rights with respect to such\n                    ------------------------ \nSoftware updated will be\n\nsubject to the applicable of source licenses.\n\n3.1.11  ACCESS TO SCRIPT LIBRARY:\n\nAccess to the Linuxcare Script Library will be made available to NES (and not\nNES customers) through the Linuxcare web site (http:\/\/www.linuxcare.com). These\n                                               ------------------------\nscripts are not to be released to NES customers without prior written consent\nfrom Linuxcare for each instance.\n\n3.1.12  ACCESS TO ONLINE CONFIGURATION DB:\n\nAccess to the Linuxcare online configuration database will be made available to\nNES through the Linuxcare web pages (http:\/\/www.linuxcare.com). This access is\n                                     ------------------------\nsolely granted to NES and is not to be released to NES customers.\n\n3.2  PROBLEM REPORTING PROCEDURES\n\nWhen NES contacts Linuxcare with an incident report, NES shall provide the\nfollowing information:\n\n     1.   Name of NES engineer placing the call. This individual must be one of\n          the Authorized customer contacts.\n\n                                                                     Page 6 of 7\n\n\n \n     2.   Name of individual and individual's company that logged the initial\n          incident report with NES.\n\n     3.   Description of the incident.\n\n     4.   Description of the steps taken by NES to resolve the problem locally.\n\nLinuxcare will track this information; NES shall not intentionally (or through\ngross negligence) mislead Linuxcare regarding any of the above points.\n\n3.3  SERVICE RESTRICTIONS\n\nThe services provided by Linuxcare are to be used at NES's support center and\nare intended to allow for NES to support Customer Base. NES may not use\nLinuxcare services provided hereunder for the purpose of providing corporate\nLinux support. Accordingly, NES shall not:\n\n     *    Sell Linuxcare support packages to Japanese corporate customers\n          without prior written consent from Linuxcare for each sale.\n\n     *    Make any additional or conflicting representations or warranties on\n          behalf of Linuxcare.\n\n     *    Use the trademark Linuxcare name, logo, or catch phrase \"At the Center\n          of Linux\" without prior written consent from Linuxcare in each case.\n\n3.4  SOW SERVICE PERIOD AND RENEWAL\n\nThe initial term of this SOW shall continue for the period of 12 months of\nservice or 40 reported incidents, whichever comes first (the \"Term\"), unless\nearlier terminated under this Master Service Agreement. This SOW shall renew for\nadditional Terms in accordance with the terms of the Master Service Agreement.\nTwo (2) months prior to expiration of an existing Term or at 30 reported\nincidents (whichever comes first), NES and Linuxcare shall meet to: (1) evaluate\nthe quality of the service provided, and (2) evaluate whether it is appropriate\nto adjust the duration of a future Term (including the number of incidents\nreported therein), and (3) in the case of agreement with respect to an\nadjustment of the duration of the Term, mutually agree in writing as to the\nduration of such future Term.\n\nNEC Software:                         Linuxcare:\n\nBy: Yoshinari Furumichi               By:  \/s\/ Justin T. Powell\nName: YOSHINARI FURUMICHI             Name: Justin T. Powell\nTitle: GENERAL MANAGER                Title: Director of Asia Pacific Operations\n\n                                                                     Page 7 of 7\n\n\n\n\n<type>EX-10.2.9\n\n<sequence>14\n\n<description>MASTER SERVICES AGREEMENT WITH SUN MICROSYSTEMS\n\n\n\n\n \n                                                                  EXHIBIT 10.2.9\n\n                                             Agreement Number: _________________\n\n\n                           MASTER SERVICES AGREEMENT\n\n          This agreement (\"Agreement\") is made as of OCTOBER 20, 1999\n(\"Effective Date\"), between Linuxcare, Inc., a Delaware corporation with an\noffice at 650 Townsend Street, San Francisco, CA 94103, USA (Phone: 415-354-\n4878; Fax: 415.701.7457; E-mail: _sdavidson@linuxcare.com) (\"Linuxcare\") and the\n\"Customer\" listed below.\n\nCustomer: Sun Microsystems, Inc.     Contact: STEVE GRUELLE\nAddress: 901 San Antonio Rd.         Phone: 650-336-6321\nPalo Alto, CA 94303                  Fax: 650-336-1549\n                                     E-Mail: Steve.gruelle@eng.sun.com\n\n                                     SERVICES INFORMATION\n\nService Fee Period:                  Oct 10, 1999 to Apr 10, 2000\nService Fee:                         [*] hour\n\n                               SERVICES PROVIDED\n\n          Subject to payment of all applicable fees, Linuxcare will use\nreasonable commercial efforts to perform the support services specified in\nLinuxcare's current, published \"Linuxcare Technical Support Programs\"\ndocumentation appropriate to the Service Level selected by Customer and the\nStatement of Work (\"SOW\") attached hereto as Exhibit A (\"Services\"), in\naccordance with the Terms and Conditions exhibit attached to this Agreement, and\nincorporated herein. In the event of any conflict between the \"Linuxcare\nTechnical Support Programs\" documentation and the SOW, the SOW shall govern.\nLinuxcare may change the \"Linuxcare Technical Support Programs\" documentation,\nSOW, the Service Fee, and the services that will be performed for a particular\nService Level, at any time; such changes will take effect at the beginning of\nthe next Service Fee Period. Customer understands that Linuxcare's performance\nis dependent in part on Customer's actions. Accordingly, any dates or time\nperiods relevant to performance of Services by Linuxcare shall appropriately and\nequitably extended to account for any delays resulting from changes to Customer\nproducts or otherwise due to Customer. Customer may request additional hours or\nlevels of Services (\"Extended Services\"), which Linuxcare may provide at\nLinuxcare's sole discretion, provided that Customer pays Linuxcare's then\ncurrent fees for such Extended Services.\n\n          This Agreement includes the attached exhibits, statements of work, and\n          ----------------------------------------------------------------------\ncontains, among other things, warranty disclaimers and liability limitations.\n----------------------------------------------------------------------------\nAny different or additional terms of any related purchase order, confirmation,\nor similar form even if signed by the parties after the date hereof shall have\nno force or effect. References in this Agreement or the exhibits to a\ncapitalized term appearing on this cover page shall have the meaning or value of\nsuch term on this cover page.\n\nCustomer:                               Linuxcare:\n\n\nBy: \/s\/ Jon S. Williams                 By: \/s\/ Thomas W. Phillips\n    -------------------                     ----------------------\n\nName: Jon S. Williams                   Name: Thomas W. Phillips\n      ---------------                         ------------------\nTitle: Dir Marketing                    Title: V.P. World Wide Sales\n       -------------                           --------------------- \n\n[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n\n \n                         TERMS AND CONDITIONS EXHIBIT\n\n               1. Training. Subject to payment of all fees, Linuxcare will\n                  --------\nprovide the training specified in Linuxcare's current, published \"Linuxcare\nTraining Programs\" documentation. Unless otherwise arranged between Customer and\nLinuxcare, all training shall occur at Linuxcare's facilities in San Francisco,\nCalifornia. The fees for training will be Linuxcare's current, published\ntraining fees, less the Training Discount (\"Training Fees\").\n\n               2. Fees and Payment. Customer shall pay Linuxcare the fees for\n                  ----------------\nthe selected Service Level shown in the Services Information section of this\nMaster Services Agreement for each Service Fee Period. (\"Service Fees\").\nCustomer will pay the Service Fees for the initial Service Fee Period within 30\ndays of the Effective Date. Customer will pay the Service Fees for subsequent\nService Fee Periods within 30 days after receipt of Linuxcare's invoice.\nCustomer will also pay Linuxcare all Training Fees and Extended Services fees\nwithin 30 days after receipt of Linuxcare's invoice therefor. All payments are\nnon-refundable. Any payments over 15 days overdue will bear a late payment fee\nof the lower of 1.5% per month of the outstanding balance or the maximum rate\nallowed by law. Linuxcare shall refund to Customer any amounts actually paid to\nLinuxcare by Customer which exceed amounts due hereunder, minus any costs, fees,\ntaxes, duties or other implications, if any, arising in connection with such\noverpayment.\n\n               3. Proprietary Rights. As between the parties, Linuxcare will\n                  ------------------\nretain all right, title and interest in and to any software, tools, techniques,\nand other materials used in connection with providing the Services (\"Linuxcare\nMaterials\"). As between the parties, Customer will retain all right, title and\ninterest in and to any software, products, documentation and other materials it\nsupplies. Linuxcare hereby assigns to Customer all right, title and interest, in\nany work product created as part of the Services (\"Work Product\"), but this\nassignment does not include any portion of the Linuxcare Materials, and will not\nprevent Linuxcare from using the expertise, ideas and know-how learned while\nperforming Services for other purposes (including, without limitation, for\nitself or on behalf of third parties).\n\n               4. Confidential Information. Each party (\"receiving party\")\n                  ------------------------ \nagrees that all code, inventions, algorithms, know-how and ideas and all other\nbusiness, technical and financial information it obtains from the other party\n(\"disclosing party\"), but not including work product that is assigned to\nCustomer by Linuxcare pursuant to Section 3, are the confidential property of\nthe disclosing party (\"Confidential Information\" of the disclosing party).\nExcept with the consent of the disclosing party, the receiving party shall hold\nin confidence and not use or disclose any Confidential Information of the\ndisclosing party for at least seven (7) years after this Agreement expires or\notherwise terminates. The receiving party's nondisclosure obligation shall not\napply to information it can document: (i) is generally available to the public\nother than through breach of this Agreement; (ii) is rightfully disclosed to the\nreceiving party by a third party; or (iii) is independently developed by the\nreceiving party without use of any Confidential Information of the disclosing\nparty. Because of the unique and proprietary nature of the Confidential\nInformation, it is understood and agreed that the disclosing party's remedies at\nlaw for a breach by the receiving party of its obligations under this Section\nwill be inadequate and that the disclosing party shall be entitled to equitable\nrelief (including without limitation provisional and permanent injunctive relief\nand specific performance). Nothing stated herein shall limit any other remedies\nprovided under this Agreement or available to the disclosing party at law. Upon\nexpiration or termination of this Agreement for any reason, each party will\nreturn all copies of all Confidential Information of the other party in its\npossession or control.\n\n               5. Termination. This Agreement will have an initial term of the\n                  -----------\nearlier of one year from the Effective Date or the date that Customer uses up\nits Incidences under its Service Level (initial \"Service Fee Period\") and shall\nautomatically renew on each anniversary of the initial Service Fee Period for\nsubsequent Service Fee Periods (subject to payment of Linuxcare's then current\nrates for additional Incidences) unless terminated by either party. For the\npurposes of this Agreement, \"Incident\" shall mean a single identified customer\nissue or problem. Each Incident is only valid during the Service Fee Period it\nwas purchased in. One call or e-mail may include multiple Incidents, and a\nsingle Incident may require more than one call or e-mail to resolve. Either\nparty may terminate this Agreement upon thirty (30) days written notice to the\nother party, except if Linuxcare is terminating the Agreement such termination\nwill not be effective until the end of any fully paid-up Service Fee Period.\nLinuxcare may terminate this Agreement at any\n\n\n \ntime in the case of non-payment by Customer of any fees, unless Customer pays\nsuch fees in full within ten (10) days after such notice. Sections 4, 5, 7, 8,\nand 9 of this Agreement, and all accrued rights to payment, shall survive\ntermination. Termination is not an exclusive remedy and all other remedies will\nbe available whether or not termination occurs.\n\n               6. Warranty and Disclaimer. Linuxcare hereby warrants to\n                  ----------------------- \nCustomer. and only Customer, that all Services shall be performed in a\nprofessional and workmanlike manner. THE PARTIES ACKNOWLEDGE THAT THIS IS AN\nAGREEMENT FOR SERVICES AND NOT FOR THE SUPPLY OF GOODS. EXCEPT FOR THE\nFOREGOING, LINUXCARE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE\nSERVICES RENDERED, AND HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES,\nINCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR\nA\n\n\n \nPARTICULAR PURPOSE, AND NONINFRINGEMENT. LINUXCARE FURTHER DISCLAIMS ANY\nWARRANTY THAT THE SERVICES WILL SUCCEED IN RESOLVING ANY PROBLEM, OR THAT ANY\nWORK PRODUCT OF THE SERVICES WILL BE FREE FROM PROGRAM ERRORS.\n\n               7.  Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN\n                   ----------------------- \nTHIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, LINUXCARE SHALL NOT\nBE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR\nUNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE\nTHEORY: (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT\nHEREUNDER WITH RESPECT TO THE APPLICABLE SERVICES; (II) FOR ANY COST OF\nPROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; OR (III) FOR\nINTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.\n\n     NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE OR OBLIGATED WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE,\nSTRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY MATTER BEYOND\nITS REASONABLE CONTROL, OR (II) FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL\nDAMAGES OR LOST PROFITS.\n\n               8.  Export Control, Customer shall comply with the U.S. Foreign\n                   -------------- \nCorrupt Practices Act and all applicable export laws, restrictions, and\nregulations of the U.S. and foreign agency or authority.\n\n               9.  Miscellaneous. This Agreement is not assignable or\n                   -------------\ntransferable by Customer without the prior written consent of Linuxcare; any\nattempt to do so shall be void. Linuxcare may assign this Agreement in whole or\nin part, or subcontract the performance of Services to third parties. Services\nmay be used solely by Customer for Customer's internal use for Customer's own\nbenefit. The parties agree that they are independent contractors and that this\nAgreement and relations between Linuxcare and Customer hereby established do not\nconstitute a, joint venture, agency or contract of employment between them, or\nany other similar relationship. Neither party has the right or authority to\nassume or create any obligation or responsibility on behalf of the other. Any\nnotice, report, approval or consent required or permitted hereunder shall be in\nwriting. No failure or delay in exercising any right hereunder will operate as a\nwaiver thereof, nor will any partial exercise of any right or power hereunder\npreclude further exercise. If any provision of this Agreement shall be adjudged\nby any court of competent jurisdiction to be unenforceable or invalid, that\nprovision shall be limited or eliminated to the minimum extent necessary so that\nthis Agreement shall otherwise remain in full force and effect and enforceable.\nAny waivers or amendments shall be effective only if made in writing. This\nAgreement is the complete and exclusive statement of the mutual understanding of\nthe parties and supersedes and cancels all previous written and oral agreements\nand communications relating to the subject matter of this Agreement. The\nprevailing party in any action to enforce this Agreement will be entitled to\nrecover its attorney's fees and costs in connection with such action.\n\n               10. Governing Law and Jurisdiction. This Agreement, which is in\n                   ------------------------------\nEnglish, shall be interpreted in accordance with the commonly understood meaning\nof the words and phrases hereof in the United States of America. Any dispute,\ncontroversy or claim arising out of or relating to this Agreement or to a breach\nthereof, including its interpretation, performance or termination, shall be\nfinally resolved by arbitration. The arbitration shall be conducted in English\nand in accordance with the commercial rules of the International Chamber of\nCommerce, which shall administer the arbitration and act as appointing\nauthority. The arbitration, including the rendering of the award, shall take\nplace in San Francisco, California, which shall be the exclusive forum for\nresolving such dispute, controversy or claim. For the purposes of this\narbitration, the provisions of this Agreement and all rights and obligations\nthereunder shall be governed and construed in accordance with the laws of the\nState of California. United States of America, without regard to the conflicts\n         ----------\nof laws provisions thereof. The decision of the arbitrators shall be binding\nupon the parties hereto, and the expense of the arbitration (including without\nlimitation the award of attorneys' fees to the prevailing party) shall be paid\nas the arbitrators determine. The decision of the arbitrators shall be\nexecutory, and judgment thereon may be entered by any court of competent\njurisdiction. Notwithstanding anything contained in this Paragraph, each party\nshall have the right to institute judicial proceedings against the other party\nor anyone acting by, through or under such other party in order to enforce the\ninstituting party's rights hereunder through reformation of contract, specific\nperformance, injunction or similar equitable relief.\n\n\n \n              STATEMENT OF WORK FOR NETBEANS IDE SUPPORT SERVICES\n\nThis Statement of Work for NetBeans IDE Support Services is the NetBeans IDE\nSupport Services Agreement (\"Agreement\") between Sun Microsystems Inc (\"Sun\"),\nand LinuxCare, Inc. (\"PROVIDER\").\n\n1.   SERVICES TO BE PROVIDED BY PROVIDER.\n     ------------------------------------\n\n     1.1  DEFINITIONS.\n\n          1.1.1  \"Business Hours\" means 8:00 a.m. To 8:00 p.m. Eastern Standard\n                 Time, Monday through Friday, excluding Sun holidays.\n          1.1.2  \"Call Back\" means calls which, at the Support Customer's\n                 request are handled by means of an e-mail to the contact of\n                 record (as shown on the service order), by a PROVIDER support\n                 engineer.\n          1.1.3  \"Support Customer\" or \"End User\" means a customer who directly\n                 or indirectly received distribution of NetBeans IDE products\n                 from Sun or from NetBeans.\n          1.1.4  \"Support Services\" means remote, centralized, software support\n                 services of NetBeans IDE software products to be provided by\n                 PROVIDER. This definition excludes on-site support services of\n                 any kind.\n          1.1.5  \"Call\" or \"Calls\" means Support Customer's request for service\n                 transmitted via e-mail,\n          1.1.6  \"IAPT\" means the Internet Applications and Performance Tools\n                 group within the Software Products &amp; Platforms division of Sun.\n          1.1.7  \"CTE\" means the Escalation Support group within IAPT.\n          1.1.8  \"Service Order\" means the documentation of a Support Services\n                 Call.\n          1.1.9  \"FAQ\" or \"FAQ's\" means the frequently asked questions list.\n\n     1.2  SUPPORT SERVICES.\n\n          1.2.1.  Services, PROVIDER will provide Support Services for Support\n                  Customers during Business Hours only, Such Support Services\n                  shall be limited to the NetBeans IDE software products and\n                  their compatibility with any of the Linux platforms\n                  (Hardware\/operating system) with which they interoperate.\n                  Support Services shall be provided in accordance with the\n                  procedures outlined in Section 1.4 of this Exhibit A.\n\n          1.2.2.  Assignment of Engineers. PROVIDER will assign engineers to\n                  provide Support Services under this Exhibit who, at the time\n                  of the assignment, are trained in providing support to\n                  NetBeans IDE products.\n\n     1.3  NETWORK COSTS. PROVIDER will be responsible for all network costs\n          related to the provision of E-mail Support Services it provides from\n          the inbound arrival of E-mail at the PROVIDER's site to the\n          distribution of E-mail outbound from the PROVIDER's site.\n\n     1.4  TELECOM COSTS. PROVIDER will be responsible for all outbound\n          telecommunications costs related to the provision of Support Services\n          it provides.\n\n     1.5  PROCEDURES FOR SUPPORT SERVICES CALLS.\n\n          1.5.1.  Receipt of Support Customer E-mails. CTE will forward to\n                  PROVIDER Support Customer E-mail as fully described in Section\n                  1.2.1. IAPT will establish a mechanism\n\n                                    1 of 6\n\n\n \n                 for the routing of Support customer E-mail to PROVIDER's\n                 designated E-mail server(s). PROVIDER will identify E-mail\n                 addresses required to allow proper Support Customer E-mail\n                 routing and identification. PROVIDER employees shall always\n                 identify themselves as \"Sun Customer Care Center\" employees\n                 when replying or responding to Support Customer's E-mail. At no\n                 time shall PROVIDER nor any of its employees or representatives\n                 expose PROVIDER's identity to Support Customers.\n          1.5.2. Response. PROVIDER will respond to Calls by reviewing the\n                 request and providing an initial response via e-mail to Support\n                 Customers within 24 hours of receipt of Call. If the Customer\n                 Support E-mail is sent to \"netbeans-customer-\n                                           -------------------     \n                 support@linuxcare.com\" E-mail alias, PROVIDER will provide for\n                 ---------------------\n                 a 3 (three) day enclosure of the issue. Otherwise, PROVIDER\n                 will provide for a 10 (ten) day closure of the issue. PROVIDER\n                 will respond to Support Customer in English. Use of the phone\n                 to provide support response is optional and is at PROVIDER's\n                 discretion and expense. E-mail responses to Support Customers\n                 shall indicate a Sun furnished e-mail address\/alias, At no time\n                 shall PROVIDER nor any of its employees or representatives\n                 expose PROVIDER's identity to Support Customers.\n          1.5.3. Data Entry. PROVIDER shall record all relevant data (reference\n                 SOW paragraph 1.5) concerning the Support Customer within\n                 PROVIDER's call management system. PROVIDER shall furnish this\n                 information to IAPT on a weekly basis. Additionally, PROVIDER\n                 shall allow IAPT electronic access to Support customer Service\n                 Orders within PROVIDER's call management system in order to\n                 assist with troubleshooting and to monitor Support Service\n                 activity.\n          1.5.4. Closure. PROVIDER acknowledges and agrees that Support Customer\n                 determines when a Service Order is completed or \"closed\".\n          1.5.5. Escalation. If PROVIDER is unable to close a Service Order\n                 within seventy-two (72) hours or if PROVIDER is requested to\n                 escalate by Support Customer and\/or IAPT, PROVIDER will\n                 escalate Service Order immediately during Business Hours to\n                 IAPT by sending all relevant data from Call (reference SOW\n                 paragraph 1.5) via e-mail to the CTE designated escalation\n                 alias.\n     1.6  DATA COLLECTION AND REPORTING. PROVIDER will collect and report the\n          following data on a weekly basis. Information shall be furnished\n          electronically in StarOffice Spreadsheet compatible format. For each\n          call taken, PROVIDER shall furnish:\n\n          a.   Support Customer information (Support Customer Name, State,\n               Country)\n          b.   Call complexity (Type of Problem, Resolution Time)\n          c.   Support Customer platforms (Hardware and Operating System,\n               version of Java in use)\n          d.   escalated back to CTE (Y\/N)\n          e.   summary reporting should include:\n               1)  total number of Calls\n               2)  # of Calls by Support Customer location (State, Country)\n               3)  # of Calls by platform\n               4)  # of Calls escalated back to Sun escalation alias\n               5)  average resolution time\n\n          Additionally, PROVIDER will furnish updates to IAPT for the NetBeans\n          IDE Knowledge Database or NetBeans IDE FAQ's as new information is\n          discovered.\n\n2.   SUN OBLIGATIONS.\n     ----------------\n\n     2.1  TRAINING. CTE will provide a trainer at a mutually agreeable time, who\n          will be available to\n\n                                    2 of 6\n\n\n \n          PROVIDER for a minimum of five (5) business days, to train PROVIDER\n          personnel with respect to Support Services. Training will be held at\n          PROVIDER's San Francisco Office or at Sun's Mountain View Office.\n\n     2.2  TOOLS AND DATABASE ACCESS. Sun will allow PROVIDER access to Sun's\n          NetBeans IDE Knowledge Database and the NetBeans IDE FAQ's solely for\n          the purpose of providing Support Services. PROVIDER agrees and\n          acknowledges that the information contained in the Knowledge Database\n          and FAQ's are hereby identified, without the need for further\n          identification, as proprietary and subject to the provisions of\n          Section 2.3 of this Agreement.\n     2.3  ACCESS TO RESOURCE TOOLS AND INFORMATION. PROVIDER understands that\n          Sun may furnish PROVIDER with resource tools and information,\n          including but not limited to the non-exclusive right to use Sun's\n          NetBeans IDE Knowledge Database, Sun's NetBeans IDE FAQ's, and other\n          web-based resources associated with NetBeans IDE products for the\n          duration of this Agreement (collectively referred to as \"Tools\"), for\n          the sole purpose of providing Support Services to Support Customers\n          under this Agreement. PROVIDER will not use the furnished Tools for\n          any other purpose. Provider understands that all Tools are supplied\n          \"AS IS\" and Sun disclaims all warranties (as set forth below in\n          Section 4).\n     2.4  ESCALATION POINT OF CONTACT. CTE will make known to PROVIDER the e-\n          mail alias to be used when escalating a Call. CTE will provide Call\n          closure information on all escalated Calls so that PROVIDER reports\n          may be complete. It is the responsibility of the PROVIDER to request\n          Call closure information from CTE on Calls that are escalated back to\n          the escalation alias. If information is not available, PROVIDER shall\n          indicate so within its report.\n\n3.   METHOD AND CONDITIONS OF COMPENSATION\n     --------------------------------------\n\n     3.1  COMPENSATION. Sun will pay PROVIDER [*] per hour worked by PROVIDER\n          personnel in the Service Order acceptance and resolution of support E-\n          mail from Support Customers. A minimum of [*] and a maximum of [*] \n          will be paid for any one Call. After thirty (30) days, rates will be\n          reviewed to ensure adequacy of pricing. If required, a mutually\n          acceptable adjustment in pricing shall be made.\n\n     3.2  DETERMINATION OF FEES. PROVIDER shall provide a summary timesheet of\n          all employees' hours worked in support of Support Services. This\n          timesheet should identify each Service Order worked on, the actual\n          number of hours worked for each Call, and the billable hours for each\n          Service Order.\n     3.3  INVOICING OF FEES. PROVIDER's invoices will be paid in accordance with\n          the payment terms set forth in Paragraph 3.4 of this Agreement.\n          Invoices shall contain a summary of charges together with the Sun-\n          assigned accounting purchase order number clearly identified and a\n          summary timesheet as identified in SOW paragraph 3.2. Additionally,\n          PROVIDER's invoices should be submitted monthly by the second Tuesday\n          of the month following delivery of Support Services.\n     3.4  REMUNERATION FOR SERVICE. In consideration for Support Services\n          provided, Sun will provide remuneration to PROVIDER in accordance with\n          the applicable support fees rates set forth in paragraph 3.1 of this\n          Agreement. Remuneration will be provided within thirty (30) days after\n          receipt of PROVIDER's invoice and is considered made by Sun on the\n          date of mailing as evidenced by postmark. Any out-of-pocket expenses\n          (e.g., travel) incurred by PROVIDER in connection with providing\n          Support Services will be the sole responsibility of PROVIDER, unless\n          otherwise approved in writing by Sun prior to PROVIDER incurring\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n                                    3 of 6\n\n\n\n \n          such expenses. Sun will only pay for actual expenses incurred by\n          PROVIDER's employees at fair and reasonable rates which were pre-\n          approved by Sun. PROVIDER will invoice Sun not more frequently than\n          monthly and as further detailed in Paragraph 3.3 of this Agreement.\n\n4.   PERFORMANCE STANDARDS.\n     ----------------------\n\n     4.1  WARRANTY OF PROVIDER. PROVIDER warrants that the Support Services\n          shall be performed in a professional, good and workmanlike manner\n          consistent with the general industry standards.\n\n     4.2  MINIMUM STANDARDS. For thirty (30) days from the effective date of the\n          Agreement, PROVIDER will be furnishing Support Services on a probation\n          or trial basis. At any time during such period, Sun may terminate this\n          Agreement due to: (i) a failure of PROVIDER to meet mutually developed\n          performance metrics; or (ii) Sun's conclusion of a long term plan for\n          supporting Calls. At the end of each month following this trial\n          period, IAPT will evaluate PROVIDER's performance under this Exhibit,\n          including, but not limited to, the PROVIDER's service call information\n          and to conduct audits of service delivery to Support Customers.\n\n     4.3  NO WARRANTIES. PROVIDER makes no warranties regarding materials or\n          supplies provided by Sun.\n\n5.   TERM AND TERMINATION.\n     ---------------------\n\n     5.1  TERM. This Agreement commences as of the date indicated in the\n          signature block below and will continue in full force and effect for\n          six (6) months, unless sooner terminated as provided herein. This\n          Agreement expires automatically upon the expiration of a six (6)\n          months term unless the Parties agree in writing to renew this\n          Agreement for an additional six (6) months term.\n     5.2  TERMINATION. Either Sun or PROVIDER may terminate this Agreement, with\n          or without cause, and for any reason, at any time upon thirty (30)\n          days prior written notice of termination to the other. Either Party\n          may terminate this Agreement: (i) immediately, by Notice upon material\n          breach by ther other Party, if such breach cannot be remedied; (ii) if\n          the other Party fails to cure any remedial material breach of this\n          Agreement within thirty (30) days of receipt of Notice of such breach;\n          and (iii) immediately, by Notice, if the other Party becomes\n          insolvent, makes a general assignment for the benefit of creditors,\n          files a voluntary petition of bankruptcy, suffers or permits the\n          appointment of a receiver for its business or assets, becomes subject\n          to any proceeding under any bankruptcy law, whether domestic or\n          foreign, or has wound up or liquidated its business voluntarily or\n          otherwise. Sun also may terminate this Agreement, without giving\n          notice to PROVIDER or an opportunity to cure, at any time within\n          thirty (30) days from the effective date of this Agreement in\n          accordance with Section 2.1 above, if PROVIDER fails to provide\n          Support Services to Sun's satisfaction within the first thirty (30)\n          days of this Agreement; and in such case, Sun shall compensate\n          PROVIDER by paying PROVIDER, at the support fees rate described in\n          this Agreement which had applied up to the date of termination, for\n          the remainder of such thirty (30 days period based on the average\n          daily call rate and hours spent per call as actually handled by\n          PROVIDER up to the date of termination.\n     5.3  EFFECT OF TERMINATION. Rights and obligations under this Agreement\n          which by their nature should survive, will remain in effect after\n          termination or expiration hereof. Provider agrees that it will have no\n          right to damages or indemnification of any nature due to any\n          expiration or termination of this Agreement, specifically including\n          commercial severance pay whether\n\n                                    4 of 6\n\n\n \n          by way of loss of future profits, payment for goodwill generated or\n          other commitments made in connection with the business contemplated by\n          this Agreement or other similar matters.\n\n          Within fifteen (15) days after the effective date of termination,\n          PROVIDER will return to Sun, at PROVIDER's expense, all Service\n          materials, Business Information, Customer Information, training\n          materials, Tools, any Sun Confidential Information, and all other\n          items belonging to Sun.\n\n     6.   OPERATIONAL CONTACTS. Both parties agree to designate one (1) employee\n          -------------------- \n     and one (1) backup employee who will be the principal contacts for all day-\n     to-day operational activities relating to the provision of Support Services\n     hereunder.\n\n                                    5 of 6\n\n\n \n     As evidenced by the authorized signatures below, Sun and PROVIDER agree\n     that this Exhibit A shall be attached to and incorporated as a part of the\n     Agreement.\n\n              THE PARTIES HAVE READ AND AGREE TO BE BOUND HEREBY.\n\n              EFFECTIVE AS OF Oct \/ 20 \/ 1999\n                              ---------------\n\nAGREED:\n\nSUN MICROSYSTEMS, INC.                 PROVIDER:\n\n                                       LINUXCARE, INC.\n\nBy: \/s\/ Jon S. Williams                By: \/s\/ Thomas W. Phillips\n    -------------------                    ---------------------- \nPrint: Jon S. Williams                 Print: Thomas W. Phillips\n       ---------------                        -----------------\nTitle: Dir Marketing                   Title: VP World Wide Sales\n       -------------                         --------------------\n\n                                    6 of 6\n\n\n\n\n<type>EX-10.2.10\n\n<sequence>15\n\n<description>STAROFFICE SUPPORT SERVICES AGREEMENT WITH SUN\n\n\n\n\n \n                                                                 EXHIBIT 10.2.10\n                                                 Agreement Number ______________\n\n                     STAROFFICE SUPPORT SERVICES AGREEMENT\n\nTHIS STAROFFICE AGREEMENT (\"Agreement\") is entered into between Sun\nMicrosystems, Inc., with its principal place of business at 901 San Antonio\nRoad, Palo Alto, California 94303 (\"Sun\"), and LinuxCare, Inc., with its\nprincipal place of business at 650 Townsend Street, San Francisco, California\n94103 (\"Provider\"). Sun and Provider are collectively referred to as the\n\"Parties\".\n\n1.   SCOPE. This Agreement establishes the terms and conditions under which\n     Provider will provide support services for StarOffice TM software products,\n     on a non-exclusive basis, to Sun Customers in Canada, the United States of\n     America, and Latin America.\n\n2.   DEFINITIONS.\n\n     2.1  \"BUSINESS INFORMATION\" means: (i) the Sun business data that may be\n          provided to Provider on product performance and Sun customer accounts\n          in connection with the provision of Support Services, and (ii)\n          information and analysis about a Sun Customer which Provider\n          collects\/compiles in connection with the provision of Support\n          Services.\n\n     2.2  \"CUSTOMER INFORMATION\" means all information belonging to a Sun\n          Customer.\n\n     2.3  \"NOTICE\" means written notification, delivered in person or by means\n          evidenced by a delivery receipt to the other Party, which is deemed\n          effective upon receipt.\n\n     2.4  \"SUPPORT SERVICES\" means all support, assessment, and other services\n          for StarOffice software products, as described in detail in the SOW,\n          to be performed by Provider under this Agreement.\n\n     2.5  \"SERVICE MATERIALS\" means those service-related materials (including\n          tools, documentation, and manuals) necessary for the delivery of the\n          Support Services and that will be furnished to Provider by Sun in\n          accordance with the terms set forth in the SOW.\n\n     2.6  \"STATEMENT OF WORK\" OR \"SOW\" means the statement of work (as it may be\n          amended from time to time by Sun) attached to this Agreement as\n          Exhibit A.\n\n     2.7  \"SUPPORT CUSTOMER\" means a StarOffice products customer for which\n          Support Services will be provided under this Agreement.\n\n3.   PROVIDER OBLIGATIONS.\n\n     3.1  SUPPORT SERVICES. This Agreement contains the terms and conditions\n          which apply to Sun's purchases of Support Services from Provider.\n          Notwithstanding any terms or conditions contained in any\n          acknowledgement or other business forms transmitted by Provider,\n          Provider will perform the work set forth in the SOW in accordance with\n          the terms and conditions of this Agreement. Support Services will\n          conform to the scope of work described in the SOW. Provider will\n          perform Support Services as an independent contractor and in a\n          professional and workmanlike manner consistent with industry standards\n          and conforming to applicable product specifications. All Provider\n          acknowledgements and transmittals must reference and are subject to\n          this Agreement.\n\n     3.2  PERSONNEL. Provider will secure all personnel required to perform\n          Support Services pursuant to this Agreement. Provider will use\n          technically qualified service personnel, as defined by Sun from time\n          to time, and employ adequate safety precautions in performing its\n          obligations hereunder. At Sun's request, Provider will consent to, and\n          have its service personnel consent to a background check. In the event\n          that Support Customers require that Sun or its subcontractors comply\n          with other conditions prior to the provision of Support Services (e.g.\n          drug testing), both Sun and Provider will attempt to accommodate the\n          Support Customer's requirements. The Parties agree that Provider is an\n          independent contractor and in no event will any personnel hired by\n          Provider to provide Support Services hereunder be considered an\n          employee or agent of Sun. Nothing herein will be construed to grant to\n          Provider any right or authority to create any obligation, express or\n          implied, on behalf of Sun, or to bind Sun or its Support Customers in\n          any manner whatsoever.\n\n     3.3  DIRECT CONTRACTING. Provider acknowledges that Sun has made a major\n          investment in establishing customer relationships with the Support\n          Customers for whom Provider will provide Support\n\n[*]= CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n                                  Page 1 of 9\n\n\n \n          Services under this Agreement. Provider agrees not to solicit support\n          services business on StarOffice software and products from such\n          Support Customers for a period of twelve (12) months from the date of\n          the last provision of Support Services under this Agreement to such\n          Support Customer.\n\n     3.4  SUN INFORMATION AND MATERIALS. Provider acknowledges and understands\n          that Business Information and Service Materials (collectively \"Sun\n          Information and Materials\") are proprietary and Sun owns all right,\n          title and interest, including copyrights or other intellectual\n          property rights, in and to any and all ideas, concepts, expertise,\n          programs, systems, methodologies, compilations, analyses, data or\n          other materials embodied in, underlying or reduced to practice in said\n          Sun Information and Materials. Provider agrees that it shall use Sun\n          Information and Materials solely for the purposes of performing\n          Support Services.\n\n     3.5  INDEMNITY.\n\n          3.7.1  Provider agrees to defend, indemnify and hold harmless Sun, its\n                 affiliates, directors, officers, employees and agents from and\n                 against any and all claims, demands, judgments and awards and\n                 expenses related thereto (including court costs and reasonable\n                 fees of attorneys and other professionals) brought or\n                 threatened by any third parties, including Support Customers,\n                 and arising out of Provider's failure to comply with this\n                 Agreement or arising out of or resulting from Provider's\n                 negligent performance of Support Services or other conduct of\n                 Provider's subcontractors, agents or employees in relation\n                 thereto. Sun will have no authority to settle any claim without\n                 the prior written consent of Provider if Provider will have any\n                 obligation thereunder. Sun expressly reserves the right to\n                 retain separate counsel at Sun's own expense to participate in\n                 the defense or settlement of such claims.\n\n          3.7.2  Provider shall defend Sun and\/or the Support Customer against\n                 any claim that Support Services furnished hereunder infringe\n                 any U.S. Patent, trade secret or copyright, and will indemnify\n                 Sun and\/or the Support Customer against any loss, damage or\n                 liability arising from final award against Sun and\/or the\n                 Support Customer, provided that Sun notifies the Provider\n                 promptly in writing of the claim and provides Provider with\n                 reasonable assistance and sole authority to defend or settle\n                 such claims, at Provider's sole expense. Provider shall not be\n                 liable for any claim of infringement arising from Provider's\n                 conformance with specifications provided by Sun and\/or the\n                 Support Customer.\n\n     3.6  INSURANCE.\n\n          3.6.1  Minimum Insurance Required. During the term of this Agreement,\n                 --------------------------   \n                 Provider will obtain and maintain at its own expense, with\n                 financially reputable insurers licensed to do business in all\n                 jurisdictions where Support Services are performed, liability\n                 insurance sufficient to protect Sun from any claims described\n                 in Section 3.5 above, and in any event, no less than the\n                 policies and limits set forth below. Provider will pay the\n                 premiums therefor, and deliver to Sun, upon request, proof of\n                 such insurance. Said insurance coverage may be modified or\n                 terminated only upon thirty (30) days Notice to Sun.\n\n                 (i)   Workers' Compensation as required under any Workers'\n                 Compensation or similar law in the jurisdiction where work is\n                 performed, with an Employer's Liability limit of not less than\n                 One Million Dollars ($1,000,000.00) per occurrence\/annual\n                 aggregate;\n\n                 (ii)  Commercial General Liability, including coverage for\n                 contractual liability and products\/completed operations\n                 liability, with a limit of not less than Five Million Dollars\n                 ($5,000,000.00) combined single limit per occurrence for bodily\n                 injury, personal injury and property damage liability;\n\n                 (iii) Business Auto insurance covering the ownership,\n                 maintenance or use of any owned, non-owned hired automobile\n                 with a limit of not less than One Million Dollars\n                 ($1,000,000.00) per occurrence\/annual aggregate for bodily\n                 injury, including death and property damage liability; and\n\n                 (iv)  Professional Liability insurance covering errors and\n                 omissions, with a limit of not less than One Million Dollars\n                 ($1,000,000.00) per\n\n\n \n                 occurrence.\n\n          3.6.2  CERTIFICATES OF INSURANCE. Provider will provide Sun with a\n                 -------------------------\n                 Certificate of Insurance showing that the foregoing insurance\n                 policies are in full force and effect upon Sun's request. Any\n                 approval by Sun of any insurance policies will not relieve\n                 Provider of any\n\n                                  Page 2 of 9\n\n\n \n                 responsibility hereunder, including but not limited to, claims\n                 in excess of limits and coverages described above. Each\n                 liability insurance policy obtained by Provider will name Sun\n                 as an \"additional insured\" except on Section 3.6.1(i). Each\n                 policy will expressly provide that it will not be subject to\n                 cancellation or material change without at least thirty (30)\n                 days' prior Notice to Sun.\n\n          3.6.3  Limitations. Nothing contained in this Section 3.6 limits the\n                 -----------\n                 Parties' liability to the other to the limits of insurance\n                 certified or carried.\n\n     3.7  PERFORMANCE. Sun will measure levels of service, quality and Support\n          Customer satisfaction with the use of surveys and\/or audits performed\n          either by Sun personnel or an independent company engaged by Sun for\n          such purpose. Provider agrees to provide, in a format acceptable to\n          Sun, any and all reports and other information requested by Sun.\n          Provider agrees to cooperate with any surveys and\/or audits which Sun\n          may request.\n\n     3.8  QUALITY ASSURANCE. In the event that Support Services are not\n          delivered in a manner consistent with the provisions of this\n          Agreement, the SOW, or Sun's quality standards, Sun may request that\n          the situation be cured. Upon Provider's receipt of such notice,\n          Provider and Sun will jointly develop and implement within fifteen\n          (15) days an action plan to remedy the situation. If the situation is\n          not corrected within a total of thirty (30) days after notification of\n          the problem, or within a reasonable length of time as dictated by the\n          agreed upon action plan, Sun may, without incurring any penalty, sever\n          Provider's provision of further Support Services to specific Customer\n          accounts.\n\n     3.9  FAIR REPRESENTATION. Provider will represent Sun fairly and will make\n          no representations or guarantees, concerning Sun or the Support\n          Services, which are false or misleading. Provider will comply with all\n          applicable laws and regulations in performing under this Agreement.\n\n     3.10 ACCESS TO RESOURCE TOOLS AND INFORMATION. Provider understands that\n          Sun may furnish Provider with resource tools and information,\n          including but not limited to the non-exclusive right to use Sun's\n          StarOffice Knowledge Database, Sun's StarOffice Autotext Database, and\n          other web-based resources associated with StarOffice products for the\n          duration of this Agreement (collectively referred to as \"Tools\"), for\n          the sole purpose of providing Support Services to Support Customers\n          under this Agreement. Provider will not use the furnished Tools for\n          any other purpose. Provider understands that all Tools are supplied\n          \"AS IS\" and Sun disclaims all warranties (as set forth below in\n          Section 11). Provider understands that the Tools are proprietary and\n          Sun owns all right, title and interest, including copyrights or other\n          intellectual property rights, in and to any and all ideas, concepts,\n          expertise, programs, systems, methodologies, data or other materials\n          embodied in, underlying or reduced to practice in said Tools.\n\n4.   SUN'S OBLIGATIONS AND RESPONSIBILITIES.\n\n     4.1  SUPPORT SERVICES TRAINING. Sun will furnish Provider with at least ten\n          (10) business days of StarOffice software support training in\n          accordance with Paragraph 2.1 of the SOW. Sun personnel furnished to\n          Provider for training also will assist in auditing Provider's ability\n          to furnish satisfactory Support Services to Support Customers, as\n          further detailed in Paragraph 4.2 of the SOW.\n\n     4.2  SUPPORT FEES. Sun will compensate Provider for the rendering of\n          Support Services hereunder in accordance with the support fees rates\n          in Paragraph 3 of the SOW and also with Section 6.1 of this Agreement.\n          For a limited time and until Provider receives written notice from Sun\n          otherwise, Provider will not charge Support Customers any fees,\n          charges, or assessments in connection with Provider rendering Support\n          Services hereunder.\n\n5.   MUTUAL RIGHTS AND OBLIGATIONS.\n\n     5.1  EMPLOYEE BENEFITS. Each Party is solely responsible for payment of\n          wages, salaries, fringe benefits and other compensation of, or claimed\n          by, its own employees including, without limitations, contributions to\n          any employee benefit, medical or savings plan, and each Party also is\n          solely responsible for payment of all payroll taxes including, without\n          limitation, the withholding and payment of all federal, state, and\n          local income taxes, FICA, unemployment \n\n\n \n          taxes, and all other applicable payroll taxes. Each Party is also\n          solely responsible for compliance with applicable Workers'\n          Compensation coverages for its own employees. Each Party agrees to\n          indemnify and defend the other Party from all claims by any person,\n          government, or agency directly relating to failure to comply with this\n          section, including without limitation, any penalties and interest\n          which may be assessed against the other for breach of this provision.\n          Each Party will also indemnify\n\n                                  Page 3 of 9\n\n\n \n          and defend the other from all claims by any person or governmental\n          agency which arise directly from any failure by that Party to comply\n          with applicable Workers' Compensation laws with respect to maintenance\n          of Workers' Compensation coverage for its own employees.\n\n     5.2  COMPLIANCE WITH LAWS AND REGULATIONS. The Parties must comply with all\n          applicable laws, orders, codes and regulations in the performance of\n          this Agreement.\n\n     5.3  PERMITS AND LICENSES. Provider shall acquire and maintain in good\n          standing, and at its sole expense, all permits, licenses and other\n          entitlements required of it in the performance of Support Services\n          under this Agreement.\n\n     5.4  DISCRIMINATION. Neither Party will discriminate in any manner against\n          any individual because of race, color, religion, national origin, age,\n          sex or handicap. Provider, in performing Support Services under this\n          Agreement, will comply with all applicable laws, rules and regulations\n          concerning the prohibition of discrimination in employment.\n\n6.   COMMERCIAL TERMS.\n\n     6.1  REMUNERATION FOR SERVICE. In consideration for Support Services\n          provided, Sun will provide remuneration to Provider in accordance with\n          the applicable support fees rates set forth in Paragraph 3 of the SOW.\n          Remuneration will be provided within thirty (30) days after receipt of\n          Provider's invoice and is considered made by Sun on the date of\n          mailing as evidenced by postmark. Any out-of-pocket expenses (e.g.,\n                                                                        ----\n          travel) incurred by Provider in connection with providing Support\n          Services will be the sole responsibility of Provider, unless otherwise\n          approved in writing by Sun prior to Provider incurring such expenses.\n          Sun will only pay for actual expenses incurred by Provider's employees\n          at fair and reasonable rates which were pre-approved by Sun. Provider\n          will invoice Sun not more frequently than monthly and as further\n          detailed in Paragraph 3.3 of the SOW.\n\n     6.2  PAYMENT OF EMPLOYEES. Provider will promptly pay its employees for all\n          work performed. If Provider does not pay its employees on a current\n          basis for work performed in connection with this Agreement, such\n          nonpayment will be deemed a material breach of this Agreement and will\n          entitle Sun, in addition to all other remedies, to withhold all\n          further payments to Provider.\n\n     6.3  TAXES. Provider will be responsible for the payment of any and all\n          taxes and government assessments due as a result of the performance of\n          Support Services or the payment thereof. Provider acknowledges and\n          agrees that it is solely the responsibility of Provider to report as\n          income all compensation received hereunder and Provider will indemnify\n          and hold harmless Sun and its Support Customers from and against all\n          claims, damages, losses, and reasonable expenses of attorneys and\n          other professionals relating to any obligation to pay any sales,\n          service, value-added or withholding taxes, social security,\n          unemployment or disability insurance or similar charges or impounds,\n          including any interest or penalties thereof, in connection with any\n          payments made to Provider hereunder.\n\n7.   RELATIONSHIP.\n\n     7.1  Provider is not granted any exclusive rights of any nature whatsoever\n          by this Agreement.\n\n     7.2  This Agreement is not intended to create a relationship such as a\n          partnership, franchise, joint venture, agency, master\/servant or\n          employment relationship. Neither Party may act in a manner which\n          expresses or implies a relationship other than that of an independent\n          contractor, nor bind the other Party. Provider will not be entitled to\n          receive any employee benefits provided to Sun employees.\n\n     7.3  Absent Sun's prior written consent, Provider will not, during the term\n          of this Agreement, accept, promote or solicit orders for the provision\n          of Support Services to any third party Sun service provider and\/or to\n          any provider of any support programs for StarOffice products. The\n          obligations of Provider set out in this section are fair and\n          reasonable in the commercial circumstances of this Agreement, and this\n          Agreement fairly and adequately compensates Provider in \n\n\n \n          consideration for such obligations.\n\n8.   OWNERSHIP, TRADEMARKS, LOGOS AND INVENTIONS.\n\n     8.1  \"Sun Trademarks\" means all names, marks, logos, designs, trade dress\n          and other brand designations used by Sun and its related companies, in\n          connection with products and services. Provider may refer to Support\n          Services by the associated Sun Trademarks only upon Sun's prior\n          written consent and provided that such reference is not misleading and\n          complies with the then current Sun Trademark and Logo Policies.\n          Provider will not remove, alter, or add to any Sun\n\n                                  Page 4 of 9\n\n\n \n          Trademarks, nor will it co-logo products and services. Provider is\n          granted no right, title or license to, or interest in, any Sun\n          Trademarks. Provider acknowledges Sun's rights in Sun Trademarks and\n          agrees that any use of Sun Trademarks by Provider will inure to the\n          sole benefit of Sun. Provider agrees not to (i) challenge Sun'\n          ownership or use of, (ii) register, or (iii) infringe any Sun\n          Trademarks, nor will Provider incorporate any Sun Trademarks into\n          Provider's trademarks, service marks, company names, internet\n          addresses, domain names, or any other similar designations. If\n          Provider acquires any rights in any Sun Trademarks by operation of law\n          or otherwise, it will immediately at no expense to Sun, assign such\n          rights to Sun along with any associated goodwill, applications, and\/or\n          registrations.\n\n     8.2  All right, title and interest in and to all code, modifications,\n          enhancements, derivative works of or improvements to any Service\n          Materials, confidential information, or any Sun product, hardware or\n          software, conceived or reduced to practice by Provider during and in\n          the course of performing Support Services (collectively, \"Works\")\n          shall be assigned to Sun at no cost and\/or shall be considered \"works\n          made for hire\" under the United States Copyright Act or other\n          equivalent or similar law, to the fullest extent permitted under\n          applicable law. If any Work created hereunder shall not be deemed to\n          constitute a work made for hire, and\/or in the event that Provider\n          should, by operation of law or otherwise, be deemed to retain any\n          rights in a Work, Provider will assign all right, title and interest\n          in any such Work to Sun. Provider agrees to cooperate with Sun and to\n          execute all documents reasonably necessary for Sun to secure\n          intellectual property protection for such Works, in Sun's name, in all\n          countries and jurisdictions. Provider agrees, and shall obligate\n          Provider's employees to agree, that all code or information developed\n          hereunder shall be kept in confidence by Provider and Provider's\n          employees and shall be used only in the performance of this Agreement,\n          and may not be used for other purposes except upon such terms as\n          agreed to under this Agreement. Sun shall have all right, title and\n          interest to such code and\/or modifications. Sun shall acquire title,\n          upon its delivery, to all software media and other information,\n          communication, and copies of the code developed hereunder.\n\n     8.3  Provider represents and warrants that it has agreements in place with\n          its employees or will put the same in place before the effective date\n          of this Agreement sufficient to enable it to comply in all respects\n          with its obligations under Section 8.2. Provider will ensure that its\n          employees and contractors execute such documents as may be necessary\n          to waive any moral rights which they may have under applicable\n          Canadian law.\n\n9.   CONFIDENTIAL INFORMATION. If either party desires that information provided\n     to the other party under this Agreement be held in confidence, that party\n     will, prior to or at the time of disclosure, identify the information in\n     writing as confidential or proprietary. The recipient may not disclose such\n     confidential or proprietary information, may use it only for purposes\n     specifically contemplated in this Agreement, and must treat it with the\n     same degree of care as it does its own similar information, but with no\n     less than reasonable care. These obligations do not apply to information\n     which: a) is or becomes known by recipient without an obligation to\n     maintain its confidentiality; b) is or becomes generally known to the\n     public through no act or omission of recipient, or c) is independently\n     developed by recipient without use of confidential or proprietary\n     information. This Section will not affect any other confidential disclosure\n     agreement between the parties. All Customer Information, Support Customers'\n     identities, Business Information, Service Materials, support manuals,\n     documentation and software are deemed \"Sun Confidential Information\", and\n     Provider will hold Sun Confidential Information in confidence and use Sun\n     Confidential Information only for purposes specifically contemplated by\n     this Agreement. It is understood and agreed that in the event of a breach\n     of this Section 9, damages may not be an adequate remedy and Sun will be\n     entitled to injunctive relief to restrain any such breach, threatened or\n     actual.\n\n10.  AIRCRAFT SERVICE AND NUCLEAR APPLICATIONS. Provider acknowledges that\n     Service Materials, training materials, software, products, services and\n     technical data delivered by Sun are not designed or intended for use in on-\n     line control of aircraft, air traffic, aircraft navigation or aircraft\n     communications; or in the design, construction, operation or maintenance of\n     any nuclear facility. SUN DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF\n     FITNESS FOR SUCH USES.\n\n11.  WARRANTIES; DISCLAIMERS. Provider represents and warrants that (a) all\n     Support Services will be performed in a professional and workmanlike\n     manner, consistent with general industry standards; and (b) any hardware,\n     software, or equipment used by \n\n\n \n     Provider in the performance of Support Services which is not directly\n     provided by Sun will not infringe or violate any patent, copyright, trade\n     secret, contract, or other proprietary or intellectual property rights of\n     any third party, and that Provider has full and complete authority to make\n     disclosure of, use, and incorporate into products such hardware, software,\n     or equipment in performing the Support Services. ALL OTHER EXPRESS OR\n     IMPLIED\n\n                                  Page 5 of 9\n\n\n \n     CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY\n     OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT,\n     ARE DISCLAIMED BY BOTH PARTIES, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS\n     ARE HELD TO BE LEGALLY INVALID.\n\n12.  LIMITATION OF LIABILITY. SUN'S AGGREGATE LIABILITY TO PROVIDER FOR ANY\n     HARM, LOSS, DAMAGE, EXPENSE, LIABILITY OR INJURY ARISING OUT OF ANY CLAIM,\n     ACTION, SUIT, OR PROCEEDING IN CONNECTION WITH, RELATING TO OR ARISING FROM\n     THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, WILL IN NO\n     EVENT EXCEED THE LESSER OF (A) THE TOTAL VALUE OF ALL SUPPORT FEES PAID TO\n     PROVIDER WITHIN THE PRECEDING SIX (6) MONTHS; OR (B) US$150,000. SUN SHALL\n     NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR\n     CONSEQUENTIAL DAMAGES IN CONNECTION WITH, RELATING TO OR ARISING FROM THIS\n     AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER\n     ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OR IN TORT, EVEN\n     IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. LIABILITY FOR\n     DAMAGES WILL BE SO LIMITED AND EXCLUDED, EVEN IF ANY REMEDY PROVIDED FOR IN\n     THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.\n\n13.  TERM AND TERMINATION.\n\n     13.1 TERM. This Agreement commences as of the date indicated in the\n          signature block below and will continue in full force and effect for\n          six (6) months, unless sooner terminated as provided herein. This\n          Agreement expires automatically upon the expiration of a six (6)\n          months term unless the Parties agree in writing to renew this\n          Agreement for an additional six (6) months term.\n\n     13.2 TERMINATION. Either Sun or Provider may terminate this Agreement,\n          with or without cause, and for any reason, at any time upon thirty\n          (30) days prior written notice of termination to the other. Either\n          Party may terminate this Agreement: (i) immediately, by Notice upon\n          material, breach by the other Party, if such breach cannot be\n          remedied; (ii) if the other Party fails to cure any remedial material\n          breach of this Agreement within thirty (30) days of receipt of Notice\n          of such breach; and (iii) immediately, by Notice, if the other Party\n          becomes insolvent, makes a general assignment for the benefit of\n          creditors, files a voluntary petition of bankruptcy, suffers or\n          permits the appointment of a receiver for its business or assets,\n          becomes subject to any proceeding under any bankruptcy law, whether\n          domestic or foreign, or has wound up or liquidated its business\n          voluntarily or otherwise. Sun also may terminate this Agreement,\n          without giving notice to Provider or an opportunity to cure, at any\n          time within thirty (30) days from the effective date of this Agreement\n          in accordance with Section 4.1 above and Paragraph 4.2 of the SOW, if\n          Provider fails to provide Support Services to Sun's satisfaction\n          within the first thirty (30) days of this Agreement; and in such case,\n          Sun shall compensate Provider by paying Provider, at the support fees\n          rate in the SOW which had applied up to the date of termination, for\n          the remainder of such thirty (30) days period based on the average\n          daily call rate and hours spent per call as actually handled by\n          Provider up to the date of termination.\n\n     13.3 EFFECT OF TERMINATION. Rights and obligations under this Agreement\n          which by their nature should survive, will remain in effect after\n          termination or expiration hereof. Provider agrees that it will have no\n          right to damages or indemnification of any nature due to any\n          expiration or termination of this Agreement, specifically including\n          commercial severance pay whether by way of loss of future profits,\n          payment for goodwill generated or other commitments made in connection\n          with the business contemplated by this Agreement or other similar\n          matters.\n\n          Within fifteen (15) days after the effective date of termination,\n          Provider will return to Sun, at Provider's expense, all Service\n          Materials, Business Information, Customer Information, training\n          materials, Tools, any Sun Confidential Information, and all other\n          items belonging to Sun.\n\n14.  IMPORT AND EXPORT LAWS. All software, services, technical data and other\n     materials delivered under this Agreement are subject to U.S. export control\n     laws and may be subject to export or import regulations in other countries.\n     Provider agrees to comply strictly with all such laws and regulations and\n     acknowledges that it has the responsibility to obtain any required licenses\n     to export, re-export, transfer, whether directly or indirectly, or import\n     as may be required after delivery to Provider.\n\n15.  MISCELLANEOUS.\n\n\n \n     15.1 ENTIRE AGREEMENT. This Agreement contains the terms and conditions\n          which apply to all purchases of Support Services made pursuant to this\n          Agreement, notwithstanding any terms or\n\n                                  Page 6 of 9\n\n\n \n           conditions contained in any acknowledgement or other business forms\n           transmitted by Provider. It supersedes all prior or contemporaneous\n           oral or written communications, proposals, conditions,\n           representations and warranties and prevails over any conflicting or\n           additional terms of any quote, order, acknowledgement, or other\n           communication between the Parties relating to its subject matter\n           during the term of this Agreement. All Provider acknowledgements and\n           transmittals must reference this Agreement. No modification to this\n           Agreement will be binding, unless in writing and signed by an\n           authorized representative of each Party.\n\n     15.2  EXHIBITS. The current version of each Exhibit is hereby incorporated\n           by reference as part of this Agreement. Exhibits may be modified only\n           upon written consent by both Parties.\n\n     15.3  USE OF SUN'S NAME. Provider will not use Sun's name in any form of\n           publicity or release without Sun's prior written approval.\n\n     15.4  ATTORNEYS' FEES. In the event that any dispute arises between the\n           Parties hereto with regard to any of the provisions of this Agreement\n           of the performance of any of the terms and conditions hereof, the\n           prevailing Party in any such dispute will be entitled to recover\n           costs and expenses associated with resolving such dispute, including\n           reasonable attorneys' fees.\n\n     15.5  WAIVER OR DELAY. Any express waiver or failure to exercise promptly\n           any right under this Agreement will not create a continuing waiver or\n           any expectation of non-enforcement.\n\n     15.6  GOVERNMENT CONTRACTS. With respect to any Support Services performed\n           in connection with a government contract or subcontract, Provider\n           agrees to be bound by all those provisions of such contract or\n           subcontract which Sun is required to pass on to its subcontractors,\n           and such provisions are hereby incorporated by reference.\n\n     15.7  CHANGE OF CONTROL. In the event of the direct or indirect taking over\n           or assumption of control of Provider or of substantially all of its\n           assets by any government, governmental agency or other third party,\n           Sun may terminate this Agreement immediately upon written notice to\n           Provider.\n\n     15.8  ASSIGNMENT. Neither Party may assign or otherwise transfer any of its\n           rights or obligations under this Agreement, either in whole or in\n           part, without the prior written consent of the other Party, except\n           that Sun may assign this or any Agreement to an affiliated company,\n           or any of these. Any assignment or delegation by Provider without\n           such consent will be null and void, and will give Sun the right\n           immediately to terminate this Agreement without liability for Support\n           Services performed after such termination. The rights and liabilities\n           of the Parties hereto will be binding upon and inure to the Parties'\n           permitted successors and assigns.\n\n     15.9  NOTICES. All Notices must be in writing and delivered either in\n           person or by a means evidenced by delivery receipt to the address\n           specified below. Such Notice will be effective upon receipt.\n\n \n\n<caption>   \n           Sun:                                             Provider:\n                                                          \n           Sun Microsystems, Inc.                           LinuxCare, Inc.\n           901 San Antonio Road                             650 Townsend Street\n           Palo Alto, California 94303                      San Francisco, California 94103\n           Attn: Enterprise Services Director of            Attn: TOM PHILLIPS\n                                                                  ------------\n           Strategic Partners and Alliances                 VP WORLDWIDE SALES\n           cc: General Counsel, Enterprise Services Legal\n           500 Eldorado Boulevard, MS BRM01-200\n           Broomfield, Colorado 80021\n \n\n     15.10 SEVERABILITY. If any provision, or part thereof, in an Agreement, is\n           held to be invalid, void, or illegal, it shall be severed from the\n           Agreement, and shall not affect, impair, or invalidate any other\n           provision, or part thereof, and it shall be replaced by a provision\n           which comes closest to such severed provision, or part thereof, in\n           language and intent, without being invalid, void, or illegal.\n\n\n \n     15.11 MEANING OF CERTAIN WORDS. The term \"includes\" and \"including\" will\n           not be construed to imply any limitation. Unless otherwise stated,\n           any reference contained in this Agreement to a Section refers to the\n           provision of this Agreement. Wherever the context may require, any\n           pronouns used in this Agreement will include the corresponding\n           masculine, feminine, or neuter forms, and the singular form of nouns\n           or pronouns, including all defined terms, will include the plural and\n           visa versa.\n\n                                  Page 7 of 9\n\n\n \n     15.12 HEADINGS; ORDER OF PRECEDENCE. Section titles and captions contained\n           in this Agreement are for reference only and in no way define, limit,\n           extend or describe the scope of this Agreement or the intent of any\n           of its provisions. If any inconsistencies or conflicts arise between\n           the provisions of this Agreement and the SOW, the following order of\n           precedence shall apply in order of priority: (1) the Agreement, and\n           (2) the SOW.\n\n     15.13 GOVERNING LAW. This Agreement and any dispute or action related\n           hereto will be governed by, and construed in accordance with, the\n           laws of California and controlling U.S. federal law, excluding choice\n           of law rules of any jurisdiction and the United Nations Convention\n           for the International Sale of Goods.\n\n     15.14 COUNTERPARTS. This Agreement may be executed in counterparts.\n\nTHIS AGREEMENT IS EFFECTIVE AS OF 9\/24\/99. THE PARTIES HAVE READ THIS AGREEMENT\nAND AGREE TO BE BOUND THEREBY.\n\nSUN MICROSYSTEMS, INC.                  PROVIDER LINUXCARE, INC.\n\n  \nBy: \/s\/ Richard Ford                    By: \/s\/ Thomas W. Phillips\n   -----------------------------           -----------------------------\n\nPrint: Richard Ford                     Print: Thomas W. Phillips\n       ------------                            ------------------\n\nTitle: Director of Strategic Alliance   Title: V.P. World Wide Sale\n       ------------------------------          --------------------\n\n                                  Page 8 of 9\n\n\n \n                                   EXHIBIT A\n                               STATEMENT OF WORK\n\n                               (attached hereto)\n\n                                  Page 9 of 9\n\n\n \nEXHIBIT A - STATEMENT OF WORK FOR STAR OFFICE SUPPORT SERVICES\n\n     This Statement of Work for StarOffice Support Services is Exhibit A to the\n     StarOffice Support Services Agreement (\"Agreement\") between Sun\n     Microsystems Inc, (\"Sun\") and LinuxCare, Inc, (\"PROVIDER\"). This Exhibit A\n     is incorporated by reference as part of the Agreement.\n\n     1.   SERVICES TO BE PROVIDED BY PROVIDER.\n          -----------------------------------\n\n          1.1  DEFINITIONS.\n\n               1.1.1  \"Business Hours\" means 8:00 a.m. to 8:00 p.m. Eastern\n                      Standard Time, Monday through Friday, excluding Sun\n                      holidays.\n\n               1.1.2  \"Call Back\" means calls which, at the Support Customer's\n                      request are handled by means of a returned telephone call\n                      to the contact of record (as shown on the service order),\n                      by a PROVIDER support engineer.\n\n               1.1.3  \"Support Customer\" or \"End User\" means a customer who\n                      directly or indirectly received distribution of StarOffice\n                      products from Sun or from StarDivision prior to its\n                      acquisition by Sun.\n\n               1.1.4  \"Live Transfer\" means calls which, at the Support\n                      Customer's request, are directly connected to a PROVIDER\n                      support engineer.\n\n               1.1.5  \"Support Services\" means remote, centralized, software\n                      support services of StarOffice software products to be\n                      provided by PROVIDER. This definition excludes on-site\n                      support services of any kind.\n\n               1.1.6  \"Call\" or \"Calls\" means Support Customer's request for\n                      service regardless of method of transmission.\n\n               1.1.7  \"Enterprise Services\" means the Enterprise Services\n                      Division of Sun.\n\n               1.1.8  \"Service Order\" means the documentation of a Support\n                      Services Call.\n\n          1.2  SUPPORT SERVICES.\n\n               1.2.1  Services. PROVIDER will provide Support Services for\n                      Support Customers during Business Hours only. Such Support\n                      Services shall be limited to the StarOffice software\n                      products and their compatibility with any of the platforms\n                      (hardware\/operating system) and peripheral devices (e.g.\n                      printers) with which they interoperate. Support Services\n                      shall be provided in accordance with the procedures\n                      outlined in Section 1.4 of this Exhibit A.\n\n               1.2.2  Assignment of Engineers. PROVIDER will assign engineers to\n                      provide Support Services under this Exhibit who, at the\n                      time of the assignment, are trained in providing support\n                      to StarOffice products.\n\n          1.3  TELECOM COSTS. PROVIDER will be responsible for all outbound\n               telecommunications costs related to the provision of Support\n               Services it provides.\n\n                                                                     Page 1 of 5\n\n\n \n          1.4  PROCEDURES FOR SUPPORT SERVICE CALLS.\n\n               1.4.1  Receipt of Support Customer Calls. Support Customer Calls\n                      will be received via phone, email, and fax. Enterprise\n                      Services will establish automatic routing of Support\n                      Customer phone calls, emails and faxes to PROVIDER\n                      designated communication equipment. PROVIDER will identify\n                      DNIS numbers, email addresses and phone numbers required\n                      to allow proper Support Customer Call routing. PROVIDER\n                      employees dealing with Support Customers shall identify\n                      themselves as \"Sun Customer Care Center\" employees and\n                      answer frontline calls accordingly. At no time shall\n                      PROVIDER nor any of its employees or representatives\n                      expose PROVIDER's identity to Support Customers.\n\n               1.4.2  Response. PROVIDER will respond to Calls by reviewing the\n                      request and providing an initial response via email to\n                      Support Customers within 24 hours of receipt of Call. It\n                      is understood that Support Customers corresponding via\n                      email through the Sun web site may submit requests in\n                      foreign languages. PROVIDER will use best efforts to\n                      respond in Support Customers' native language. It is also\n                      understood that some Support Customers may require\n                      assistance over the phone for more complex issues.\n                      PROVIDER will use its judgment to determine if phone\n                      assistance is required. It is the intent of Enterprise\n                      Services to change the expectations of Support Customers\n                      to use electronic means for submitting requests and\n                      receiving responses. Email responses to Support Customers\n                      shall indicate a Sun-furnished mail address\/alias. At no\n                      time shall PROVIDER nor any of its employees or\n                      representatives expose PROVIDER's identity to Support\n                      Customers.\n\n               1.4.3  Data Entry. PROVIDER shall record all relevant data\n                      (reference SOW paragraph 1.5) concerning the Support\n                      Customer within PROVIDER's call management system.\n                      PROVIDER shall furnish this information to Enterprise\n                      Services on a weekly basis. Additionally, PROVIDER shall\n                      allow Enterprise Services electronic access to Support\n                      Customer Service Orders within PROVIDER's call management\n                      system in order to assist with troubleshooting and to\n                      monitor Support Service activity.\n\n               1.4.4  Closure. PROVIDER acknowledges and agrees that Support\n                      Customer determines when a Service Order is completed or\n                      \"closed\".\n\n               1.4.5  Escalation. If PROVIDER is unable to close a Service Order\n                      within twenty-four (24) hours, PROVIDER will escalate Call\n                      immediately during Business Hours to Enterprise Services\n                      by contacting the designated Enterprise Services point of\n                      contact.\n\n          1.5  DATA COLLECTION AND REPORTING. PROVIDER will collect and report\n               the following data on a weekly basis. Information shall be\n               furnished electronically in StarOffice Spreadsheet compatible\n               format. For each call taken, PROVIDER shall furnish:\n\n               a.     Support Customer information (Support Customer Name,\n                      Address, City, State, Country)\n               b.     type of End User (Enterprise, Educational, Personal)\n               c.     Call complexity (Type of Problem, Resolution Time)\n               d.     Support Customer platforms (Hardware and Operating System)\n\n                                                                     Page 2 of 5\n\n\n \n               e.   escalated back to Enterprise Services (Y\/N)\n               f.   method of Support Customer contact (phone, email, fax)\n               g.   method of response to Support Customer (phone, email, fax)\n               h.   summary reporting should include:\n\n                    1)  total number of Calls\n                    2)  # of Calls by Support Customer location (State, Country)\n                    3)  # of Calls by type of End User\n                    4)  # of Calls by platform\n                    5)  # of Calls escalated back to Enterprise Services\n                    6)  # of Calls by type of problem (e.g. registration,\n                        printer drivers, etc.)\n                    7)  average resolution time\n\n          Additionally, PROVIDER will furnish updates to Enterprise Services for\n          the StarOffice Knowledge Database or StarOffice Autotext Database as\n          new information is discovered.\n\n     2.   ENTERPRISE SERVICES OBLIGATIONS.\n          -------------------------------\n\n          2.1  TRAINING. Enterprise Services will provide an on-site trainer,\n          who will be available to PROVIDER for a minimum of ten (10) business\n          days, to train PROVIDER personnel with respect to Support Services.\n\n          2.2  TOOLS AND DATABASE ACCESS. Enterprise Services will allow\n          PROVIDER access to Enterprise Services' StarOffice Knowledge Database\n          and the StarOffice Autotext Database solely for the purpose of\n          providing Support Services. PROVIDER agrees and acknowledges that the\n          information contained in the Knowledge and Autotext databases are\n          hereby identified, without the need for further identification, as\n          proprietary and subject to the provisions of Section 3.10 of the\n          Agreement, Access to Resource Tools and Information.\n\n          2.3  TELECOM COSTS. Enterprise Services will be responsible for\n          inbound telecommunications costs to PROVIDER which are incurred\n          through the provision of Support Services EXCEPT that Enterprise\n          Services will not reimburse collect calls that are placed to PROVIDER\n          by Support Customers.\n\n          2.4  ESCALATION POINT OF CONTACT. Enterprise Services will make known\n          to PROVIDER the contact information for the engineer(s) that will be\n          responsible for accepting Call escalations. Enterprise Services will\n          provide Call closure information on all escalated Calls so that\n          PROVIDER reports may be complete. It is the responsibility of the\n          PROVIDER to request Call closure information from Enterprise Services\n          on Calls that are escalated back to Enterprise Services. If\n          information is not available, PROVIDER shall indicate so within its\n          report.\n\n     3.   METHOD AND CONDITIONS OF COMPENSATION.\n          -------------------------------------\n\n                                                                     Page 3 of 5\n\n\n \n     3.1  Compensation. Enterprise Services will pay PROVIDER [*] per hour\n     worked by PROVIDER personnel in the Call acceptance and resolution of\n     support requests by Support Customers. A minimum of [*] and a maximum of \n     [*] will be paid for any one Call. After thirty (30) days, rates will be\n     reviewed to ensure adequacy of pricing. If required, a mutually acceptable\n     adjustment in pricing shall be made.\n\n     3.2  DETERMINATION OF FEES. PROVIDER shall provide a summary timesheet of\n     all employees' hours worked in support of Support Services. This timesheet\n     should identify each Service Order worked on, the actual number of hours\n     worked for each Call, and the billable hours for each Call.\n\n     3.3  INVOICING OF FEES. PROVIDER's invoices will be paid in accordance with\n     the payment terms set forth in Section 6.1 of the Agreement. Invoices shall\n     contain a summary of charges together with the Sun-assigned accounting\n     purchase order number clearly identified and a summary timesheet as\n     identified in SOW paragraph 3.2. Additionally, PROVIDER's invoices should\n     be submitted monthly by the second Tuesday of the month following delivery\n     of Support Services.\n\n4.   PERFORMANCE STANDARDS.\n     ----------------------\n\n     4.1  WARRANTY OF PROVIDER. PROVIDER warrants that the Support Services\n     shall be performed in a professional, good and workmanlike manner\n     consistent with the general industry standards.\n\n     4.2  MINIMUM STANDARDS. For thirty (30) days from the effective date of the\n     Agreement, PROVIDER will be furnishing Support Services on a probation or\n     trial basis. At any time during such period, Enterprise Services may\n     terminate this Agreement due to: (i) a failure of PROVIDER to meet mutually\n     developed performance metrics; or (ii) a significant reduction in the\n     volume of Support Services Calls; or (iii) Enterprise Services' conclusion\n     of a long term plan for supporting Calls. At the end of each month\n     following this trial period, Enterprise Services will evaluate PROVIDER's\n     performance under this Exhibit, including, but not limited to, the\n     PROVIDER's ability to resolve calls in an accurate and timely fashion.\n     Enterprise Services reserves the right to contact its Support Customers to\n     verify the accuracy of PROVIDER's service call information and to conduct\n     audits of service delivery to Support Customers.\n\n     4.3  NO WARRANTIES. PROVIDER makes no warranties regarding materials or\n     supplies provided by Enterprise Services.\n\n5.   OPERATIONAL CONTACTS. Both parties agree to designate one (1) employee and\n     ---------------------\none (1) backup employee who will be the principal contacts for all day-to-day\noperational activities relating the provision of Support Services hereunder.\n\n[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY \nWITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO \nTHE OMITTED PORTIONS.\n\n                                                                     Page 4 of 5\n\n\n \nAs evidenced by the authorized signatures below, Sun and PROVIDER agree that\nthis Exhibit A shall be attached to and incorporated as a part of the Agreement.\n\n     THE PARTIES HAVE READ AND AGREE TO BE BOUND HEREBY.\n     EFFECTIVE AS OF 9 \/ 24 \/ 99\n                     -   --   --\n\n     AGREED:\n\n     SUN MICROSYSTEMS, INC.                  PROVIDER:\n                                             LINUXCARE, INC.\n\n\n     By: \/s\/ Richard Ford                    By: \/s\/ Thomas W. Phillips\n\n     Print: Richard Ford                     Print: Thomas W. Phillips\n            ------------                            ------------------\n\n     Title: Director of Strategic Alliance   Title: V.P. World Wide Sales\n           ------------------------------           ---------------------\n\n                                                                     Page 5 of 5\n\n\n\n\n<type>EX-10.3.1\n\n<sequence>16\n\n<description>AGREEMENT WITH EURO BUSINESS CENTER\n\n\n\n\n \n                                                                  EXHIBIT 10.3.1\n \n                                                   Keizersgracht 62-64\n                                                   1015 CS Amsterdam\n                                                   The Netherlands\n                                                   Phone: 31(0)20 520 75 00\n                                                   Fax: 31(0)20 520 75 10\nE-mail:info@amsterdam.eurobc.nl\n\n                                                   Bank Account no 54,91.12.332\n                                                   Chamber of Commerce:\n                                                   Amsterdam 33148590\n\n                                      FAX\n \nFOR        :    Mr A.F Tyde III\n \nFAXNO.     :    + 1 415 701 7457\n \nFROM       :    Euro Business Center\n \nOur ref    :     \n\nDATE       :    17-9-99\n \nPAGES      :    7\n\nPlease contact us if incomplete or illegible: Tel.: +31 20 520 7500 \/ Fax: +31\n20 520 7510\n\nDear Mr Tyde,\n\nHerewith we fax you the contract for office A101 and a102.\n\nYours sincerely,\n\nEURO BUSINESS CENTER\n       AMSTERDAM\n\n\n\/s\/ John Milhado\nJohn Milhado\nManaging Director\n\n                                 www.eurobc.nl\n\n\n \nTHIS AGREEMENT is made this Friday 17 September 1999\n\nBETWEEN:\n\n(1)  EURO BUSINESS CENTER at Keizersgracht 62-64, Amsterdam (hereinafter\n     referred to as \"EBC\");\n\n(2)  and Linuxcare, Inc. (hereinafter referred to as \"the client\").\n\nOur ref.\n\nWHEREAS:\n\n(a)  The business conducted by EBC consists of the provision of services for\n     companies, by way of temporary office accommodation and facilities,\n     including supervisory, administrative and secretarial services;\n\n(b)  for the purposes of conducting its business activities as described under\n     (a) above, EBC occupies premises situated at Keizersgracht 62-64, 97-99 and\n     106, in Amsterdam (\"the premises\");\n\n(c)  the client wishes to avail itself of said services in the manner, and under\n     the terms and conditions, provided for in this Agreement.\n\nIT IS AGREED AS FOLLOWS:\n\n1.   (1)  EBC shall supply office A101 and A102 at Keizersgracht 106;\n\n     (2)  the client may use the offices as its registered office under the name\n          of Linuxcare, Inc.;\n\n     (3)  the client shall not, without the prior written consent of EBC, employ\n          or directly engage the services of any member of EBC's staff; each and\n          any breach of this provision shall be subject to a penalty payment of\n          Guilders 25,000.00 (twenty-five thousand Guilders);\n\n     (4)  the client agrees that it will conduct its business in such a way as\n          not to interfere with the business activities of any other client or\n          clients of EBC; the client further agrees to instruct its designated\n          employees to act accordingly; the client shall not accept any collect\n          calls and shall not make use of teleservices such as message services,\n          teleplus services and conference calls;\n\n                                                                               1\n\n\n \n     (5)  the client indemnifies EBC against any claims by the client or by\n          third parties in respect of damages suffered as a result of the\n          client's failure to fulfil its obligations under sub-clause (4).\n\n2.   THIS AGREEMENT is entered upon for a period of 12 months and commencing on\n     1 October 1999 and therefore ending on 30 September 2000. If no written\n     notice is received 3 months before the end of the contract, the contract\n     will automatically be renewed with 12 months.\n\n3.   (1)  The client is entitled to use the address of EBC as its mailing\n          address on its stationery and other printed matter;\n\n     (2)  EBC shall arrange for incoming post, telephone, fax messages and other\n          items which arrive at the premises for the client, to be delivered\n          promptly to the client;\n\n     (3)  should the client so require, EBC shall arrange for the client's name\n          and the telephone number accorded to it to be entered in the local\n          (Amsterdam) and national telephone directories at cost; in this case,\n          the client shall give timely written notice of its wishes to EBC;\n\n     (4)  the client is entitled to use the reception services operated by EBC\n          at the Premises;\n\n     (5)  besides the services described under Clause 1 (1) and Clause 3 (1) to\n          (4), which are covered by the monthly service charge stated in Clause\n          4 (1) below, the client is also entitled to additional services to be\n          provided by EBC;\n\n     (6)  the rights and services to which the client is entitled under the\n          terms of this agreement are personal to the client and its designated\n          employees, and such rights and services may not, without the prior\n          written consent of EBC, be transferred or assigned to any third party.\n\n4.   (1)  The client agrees to pay to EBC for the duration of this Agreement a\n          general charge of Guilders 6,000.00 per month, including a private\n          telephone and fax number(no and ), plus 17.5% VAT. Rent is payable\n          three months in advance. Furthermore a deposit of Guilders 6,000.00 is\n          required ;\n\n     (2)  the security deposit referred to in sub-clause of this Clause shall be\n          repaid to the client within thirty days after termination of this\n          Agreement, after receipt of all outstanding amounts due by the client\n          to EBC;\n\n                                                                               2\n\n\n \n     (3)  the monthly payment stated in sub-clause (1) of this Clause may be\n          increased twice-yearly by EBC, provided that a minimum of one calendar\n          month notice is given in writing;\n\n     (4)  in addition, EBC shall render a Statement of any charge due for\n          additional services provided to the client during the preceding month,\n          and shall specify in such Statement any amounts due in respect of\n          postal, fax and telephone expenses etc. incurred on behalf of the\n          client during the same period. For prices we refer to our general\n          documentation;\n\n     (5)  the client shall pay the amount reflected in the said Statement to EBC\n          no later than seven days after the date of such Statement; this amount\n          (including VAT) shall not exceed the sum paid as deposit. Should it\n          reach the deposit figure, immediate payment must be made by cash,\n          credit card or telephonic transfer, failing which EBC reserves the\n          right to suspend all services until such time as payment in full has\n          been received. The foregoing shall in no way invalidate the client's\n          contractual obligations, which will remain in force in to\n          notwithstanding.\n\n     (6)  The use of a meeting room one day a month is included in the rental\n          price.\n\n5.   (1)  The client agrees that EBC shall in no event be held liable for\n          loss of, or damage to, any documents or other items resulting from\n          services provided by the Dutch Post Office, courier service and\/or\n          other companies;\n\n     (2)  with reference to that stated in sub-clause (1) of this Clause, any\n          insurance cover required by the client shall be arranged by the client\n          at its own expense.\n\n6.   The client is entitled to a key card for the front door of Keizersgracht\n     106.\n\n7.   Clients of Euro Business Center are permitted to place their own nameplate\n     in the lobby at Keizersgracht 106.\n\n8.   This agreement shall be interpreted and effected in accordance with the\n     Laws of the Netherlands, and the parties hereto agree to adhere to the\n     exclusive jurisdiction of the Court of Amsterdam.\n\n9.   All our offers, agreements and services, apply to the General Conditions of\n     Euro Business Center as registered with the Chamber of Commerce in\n     Amsterdam dated 12 May 1992.\n\nThe signature below certifies that a copy of these has been received, the\ncontents duly noted,\n\n                                                                               3\n\n\n \nand that these Terms and Conditions are hereby accepted.\n\nSigned at Friday 17 September 1999 (Please sign every page)\n\nBy:                                      By:\n\nJacqueline Welleman                      Arthur Tyde\nManager\n\n                                         \/s\/ Arthur Tyde   9\/27\/99\n\nFor and on behalf of:                    For and on behalf of:\n\nEURO BUSINESS CENTER                     Linuxcare, Inc.\n AMSTERDAM\n\n                                                                               4\n<\/description><\/sequence><\/type><\/caption><\/description><\/sequence><\/type><\/description><\/sequence><\/type><\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8066,8314],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9613,9620],"class_list":["post-42564","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-linuxcare-inc","corporate_contracts_companies-nec-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42564","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42564"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42564"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42564"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42564"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}