{"id":42857,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/sun-community-source-license-sun-microsystems-inc-and-caldera.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"sun-community-source-license-sun-microsystems-inc-and-caldera","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/sun-community-source-license-sun-microsystems-inc-and-caldera.html","title":{"rendered":"Sun Community Source License &#8211; Sun Microsystems Inc. and Caldera Systems Inc."},"content":{"rendered":"<pre>                         SUN COMMUNITY SOURCE LICENSE\n                                   Version 2.7\n                           (Rev. Date Sept. 16, 1999)\n\nThis Sun Community Source License (the 'License') is made and entered into by\nand between Sun Microsystems, Inc. ('Original Contributor') and Caldera Systems,\nInc. ('You'), and is effective as of the date signed by Sun below ('Effective\nDate'). This License is entered into concurrently with a separate Sun Community\nSource License for Java2 Standard Edition (Agreement No. 55391).\n\nThe parties hereby incorporate by reference as if fully and separately set forth\nherein, the entirety of Agreement No. 55391 except for the header before\n'RECITALS' on page 1, and Attachments B, D and E thereto, which are all as set\nforth herein.\n\nAGREED TO AND ACCEPTED BY:\n\nYou:                                        Original Contributor:\n\nCaldera Systems, Inc.                       Sun Microsystems, Inc.\n\nBy:                                         By:\n    --------------------------                  ------------------------------\nTitle:                                      Title:\n      ------------------------                     ---------------------------\nDate:                                       Date:\n      ------------------------                    ----------------------------\n\n\nATTACHMENT B\n\nHotspot Virtual Machine Technology\n\nDescription of 'Technology'\n\nHotspot Virtual Machine Technology v.1.0.1 as described on the Technology\nDownload Site.\n\nATTACHMENT D\nCOMMERCIAL USE LICENSE\n\n1. Effect. This Attachment D is to the Sun Community Source License version 2.7\nfor the Hotspot Virtual Machine Technology ('SCSL'). You and Original\nContributor have agreed to the terms of the SCSL. You acknowledge that the SCSL\nis binding on You. This Attachment D is effective only if signed below by\n\nAgreement No. 55543                                                       Page 1\n\n\n   2\n\n\nYou and Original Contributor, and applies to Your Commercial Use of Original\nCode and Upgraded Code. All capitalized terms used herein shall have the same\nmeaning set forth in the SCSL unless otherwise stated. In the event of a\nconflict between the express terms of this Attachment D and the Research Use\nlicense Section 3.1, the terms of this Attachment D shall govern.\n\n2. Term. Upon execution of this Attachment D by You and Original Contributor,\nthis Commercial Use license shall have a term of 18 months. Upon payment by You\nof the amounts set forth in Section 7 hereof, the term of this Attachment D\nshall be extended by one or two years, as applicable.\n\n3. Commercial Use License Grant. Subject to Your compliance with Section 4\nbelow, Section 8.10 of the SCSL, and the TCK license (and Your right to cure\nbreaches to the extent provided in Section 6. of the SCSL); in addition to the\nResearch Use license, the TCK license, and the Internal Deployment Use license,\nOriginal Contributor grants to You a worldwide, non-exclusive, non-transferable\nlicense, to the extent of Original Contributor's Intellectual Property Rights\ncovering the Original Code, Upgraded Code and Specifications, to do the\nfollowing within the specified field of use:\n\na) reproduce and distribute Compliant Covered Code and authorize or license its\nuse in compliance with the License by other Licensees;\n\nb) compile Compliant Covered Code and reproduce and distribute the same in\nExecutable form directly to end users or through one or multiple tiers of\ndistribution and authorize or license its use by others in compliance with the\nLicense;\n\nc) reproduce and distribute Reformatted Specifications in association with\nCompliant Covered Code and authorize or license their use by others in\ncompliance with the License; and\n\nd) create Modifications for Commercial Use or Internal Deployment Use under the\nprovisions of this Attachment D and Section 2.a)(i) of the Research Use license.\n\n4. Additional Requirements and Responsibilities. In addition to the requirements\nand responsibilities specified in the Research Use license, the TCK license and\nthe Internal Deployment license, and as a condition to exercising the rights\ngranted in Section 3 above, You agree to the following additional requirements\nand responsibilities:\n\na) Distribution of Source Code. Source Code of Compliant Covered Code may be\ndistributed only to another Licensee of the same Technology.\n\nb) Distribution of Executable Code. You may distribute the Executable version(s)\nof Compliant Covered Code under a license of Your choice, which may contain\nterms different from this License, provided (i) that You are in compliance with\nthe terms of this\n\nAgreement No. 55543                                                       Page 2\n\n   3\n\n\nLicense, and (ii) You must make it absolutely clear that any terms which differ\nfrom this License are offered by You alone, not by Original Contributor or any\nother Contributor. Commencing with Your first release of Compliant Covered Code,\neach binary copy of Your Linux operating system distributed by You must include\nthe executable version of Your implementation of the Technology (and which must\nconform to the definition of Compliant Covered Code), except that for binary\ncopies made available via web download, You must instead make the executable\nversion of Your implementation of the Technology (and which must conform to the\ndefinition of Compliant Covered Code) available for download as well. This\nsection does not require bundling of Your implementation of the Technology with\nYour OpenLinux software in fields of use outside the scope of Section 7, or in\ndistributions limited to demonstration, evaluation, or promotional purposes or\ncopies of Your OpenLinux software which must be distributed in order to comply\nwith the GNU General Public License.\n\nc) Branding. Products integrating Compliant Covered Code used for Commercial Use\nmust be branded with the Technology compliance logo under a separate trademark\nlicense required to be executed by You and Original Contributor concurrent with\nexecution of this Attachment D.\n\n5. Indemnity\/Limitation of Liability. The provisions of Section 7.1 of the\nResearch Use license are superseded by the following:\n\na) Your Indemnity Obligation. You hereby agree to defend, at Your expense, any\nlegal proceeding brought against Original Contributor or any Licensee to the\nextent it is based on a claim: (i) that the use, reproduction or distribution of\nany of Your Error Corrections or Shared Modifications is an infringement of a\nthird party trade secret or a copyright in a country that is a signatory to the\nBerne Convention; (ii) based on any representation, warranty, support,\nindemnity, liability or other license terms You may offer in connection with any\nCovered Code; or (iii) arising from Your Commercial Use of Covered Code, other\nthan a claim covered by Section 5.b) below, or a patent claim based solely on\nCovered Code not provided by You. You will pay all damages, costs and fees\nawarded by a court of competent jurisdiction, or such settlement amount\nnegotiated by You, attributable to such claim.\n\nb) Original Contributor's Indemnity Obligation. Original Contributor will\ndefend, at its expense, any legal proceeding brought against You, to the extent\nit is based on a claim that Your authorized Commercial Use of Original Code and\nUpgraded Code is an infringement of a third party trade secret or a copyright in\na country that is a signatory to the Berne Convention, and will pay all damages,\ncosts and fees awarded by a court of competent jurisdiction, or such settlement\namount negotiated by Original Contributor, attributable to such claim. The\nforegoing shall not apply to any claims of intellectual property infringement\nbased upon the combination of code or documentation supplied by Original\nContributor with code, technology or documentation from other sources.\n\nAgreement No. 55543                                                       Page 3\n\n   4\n\n\nc) Right of Intervention. Original Contributor will have the right, but not the\nobligation, to defend You, at Original Contributor's expense, in connection with\na claim that Your Commercial Use of Original Code and Upgraded Code is an\ninfringement of a third party patent and will, if Original Contributor chooses\nto defend You, pay all damages, costs and fees awarded by a court of competent\njurisdiction, or such settlement amount negotiated by Original Contributor,\nattributable to such claim.\n\nd) Prerequisites. Under Sections 5.b) and c) above, You must, and under Section\n5.a) above, Original Contributor or any Licensee must: (i) provide notice of the\nclaim promptly to the party providing an indemnity; (ii) give the indemnifying\nparty sole control of the defense and settlement of the claim; (iii) provide the\nindemnifying party, at indemnifying party's expense, all available information,\nassistance and authority to defend; and (iv) not have compromised or settled\nsuch claim or proceeding without the indemnifying party's prior written consent.\n\ne) Additional Remedies. Should any Original Code, Upgraded Code, TCK,\nSpecifications, Error Corrections, or Modifications become, or in the\nindemnifying party's opinion be likely to become, the subject of a claim of\ninfringement for which indemnity is provided above, the indemnifying party may,\nat its sole option, attempt to procure on reasonable terms the rights necessary\nfor the indemnified party to exercise its license rights under this License with\nrespect to the infringing items, or to modify the infringing items so that they\nare no longer infringing without substantially impairing their function or\nperformance. If the indemnifying party is unable to do the foregoing after\nreasonable efforts, then the indemnifying party may send a notice of such\ninability to the indemnified party together with a refund of any license fees\nreceived by the indemnifying party from the indemnified party for the infringing\nitems applicable to the indemnified party's future use or distribution of such\ninfringing items, in which case the indemnifying party will not beliable for any\ndamages resulting from infringing activity with respect to the infringing items\noccurring after such notice and refund.\n\n6. Support Programs.\n\nSupport to You. Technical support is not provided to You by Original Contributor\nunder this License. You may contract for one or more support programs from\nOriginal Contributor relating to the Technology which are described on the SCSL\nWebpage.\n\nCustomer Support. You are responsible for providing technical and maintenance\nsupport services to Your customers for Your products and services incorporating\nthe Compliant Covered Code.\n\n7. Technology and Payments.\n\nTechnology specified in Attachment B.\n\nAgreement No. 55543                                                       Page 4\n\n   5\n\n\nField of Use: OpenLinux for the x86, UltraSPARC, Itanium (Merced), and PowerPC\nprocessors\n\nYou hereby agree to pay Original Contributor a nonrefundable payment as provided\nin the Sun Community Source License Attachment D for Java2 Standard Edition\nentered into by the parties concurrently herewith (Agreement No. 55391), for the\nright, for 18 months from the execution hereof, to distribute Compliant Covered\nCode in compliance with and subject to the provisions of the SCSL and its\nattachments.\n\nUpon payment of the applicable $3,100,000 fee as specified in Agreement\nNo. 55391, this Attachment D will have a term of three years and six months.\nAlternatively, this Attachment D will renew for a second and third year\n(following the 18 month initial term) upon payment of the applicable $1,500,000\nand $1,750,000 fees as specified in Agreement No. 55391. Payment as provided\nabove under Section 7 of Attachment D of the SCSL for Java2 Standard Edition\nconstitutes payment under this Section 7, i.e., You are not obligated to make\ndouble payments.\n\nProvided that this Attachment has been extended to three and a half years as\nabove, You may elect to extend this Attachment for up to an additional three\nyears. If You elect to extend the term of this Attachment, the pricing for such\nadditional term (excluding support) will not exceed Original Contributor's\napplicable then-current standard pricing for the license and rights granted\nherein.\n\nb) [****]\n\nc) Taxes. All payments required by this License shall be made in United States\ndollars, are exclusive of taxes, and You agree to bear and be responsible for\nthe payment of all such taxes, including, but not limited to, all sales, use,\nrental receipt, personal property or other taxes and their equivalents which may\nbe levied or assessed in connection with this License (excluding only taxes\nbased on Original Contributor's net income). To the extent You are required to\nwithhold taxes based upon Original Contributor's income in any country, You\nagree to provide Original Contributor with written evidence of such withholding,\nsuitable for Original Contributor to obtain a tax credit in the United States.\n\n8. Notice of Breach or Infringement. Each party shall notify the other\nimmediately in writing when it becomes aware of any breach or violation of the\nterms of this License, or when You become aware of any potential or actual\ninfringement by a third party of the Technology or Sun's Intellectual Property\nRights therein.\n\n9. Proprietary Rights Notices. You may not remove any copyright notices,\ntrademark notices or other proprietary legends of Original Contributor or its\nsuppliers contained on or in the Original Code, Upgraded Code and\nSpecifications.\n\nAgreement No. 55543                                                       Page 5\n\n\n\n**** CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH\nTHE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN\nREQUESTED WITH RESPECT TO SUCH OMITTED PORTIONS.\n   6\n\n\n10. Notices. All written notices required by this License must be delivered in\nperson or by means evidenced by a delivery receipt and will be effective upon\nreceipt by the persons at the addresses specified below.\n\nOriginal Contributor:                         You:\n\nSun Microsystems, Inc.                        Caldera Systems, Inc.\n\n901 San Antonio Road                          240 West Center St.\n\nPalo Alto, California 94303                   Orem UT 84057\n\nAttn.: VP, Sun Software and\nTechnology Sales                              Attn: President,\n\ncc: Sun Software and Technology,              cc: Contracts Administrator\nGeneral Counsel\n\n11. Disclaimer of Agency. The relationship created hereby is that of licensor\nand licensee and the parties hereby acknowledge and agree that nothing herein\nshall be deemed to constitute You as a franchisee of Original Contributor. You\nhereby waive the benefit of any state or federal statutes dealing with the\nestablishment and regulation of franchises.\n\n12. Confidentiality. You and Original Contributor shall keep and maintain in\nconfidence the terms and conditions of this License. However, either party may\ndisclose the general nature of the rights and obligations under this Attachment\nD in the course of business or as required by law or court order.\n\nAgreed:\n\nYou:                                          Original Contributor:\n\nCaldera Systems, Inc.                         Sun Microsystems, Inc.\n\nBy:                                           By:\n   -----------------------------                 -------------------------------\n\nTitle:                                        Title:\n      --------------------------                    ----------------------------\n\nDate:                                         Date:\n     ---------------------------                    ----------------------------\n\n\n\n\nATTACHMENT E\nTECHNOLOGY COMPATIBILITY KIT\n\nAgreement No. 55543                                                       Page 6\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6993,8783,8968],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42857","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-caldera-systems-inc","corporate_contracts_companies-sco-group-inc","corporate_contracts_companies-sun-microsystems-inc","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42857","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=42857"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42857"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42857"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42857"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}