Looking for an agreement? Search from over 1 million agreements now.

Binary License And Redistribution Agreement

This is an actual contract between Myweb and SUN Microsystems,.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
This Binary License and Redistribution Agreement (the "License") is entered into this 25th day of March, 1999 (the "Effective Date") between Sun Microsystems, Inc. ("Sun") with its principal place of business at 901 san Antonio Road, Palo Alto, California 94303 and TecnoChannel Sdn. Bhd., a corporation with its principal place of business at Incubator 2,Lot G3, Technology park Malaysia, Lebuhraya Puchong-Sungei Besi, Bukit Jalil, 57000 Kuala Lumpur ("Licensee").


RECITALS


WHEREAS Sun wishes to license certain of its Java(TM) technology in binary code form for distribution as part of Licensee's Java related products, while maintaining compatibility among Java language based products; and


WHEREAS Licensee wishes to incorporate the Java(TM) technology into Licensee's Java related products for distribution to customers;


NOW THEREFORE, Sun and Licensee enter into this License on the following terms.


1.0 DEFINITIONS


1.1 "Field of Use" means the relevant market segments and/or product areas identified in Exhibit A.


1.2 "Licensee's Product" means Licensee's product identified in Exhibit A into which Licensee will incorporate the Software. A "Product" must: (i) have a principal purpose which is substantially different from that of the stand-alone Software; (ii) represent a significant functional and value enhancement to the Software; and (iii) operate in conjunction with the Software. A current list of Product(s) is identified in Exhibit A, which may be amended by Licensee to add Product(s) from time to time.


1.3 "Per Unit Royalties" means the royalty rate specified in Exhibit C for each copy of Licensee's Product distributed by or for Licensee which incorporates the Software or each licensed user of Licensee's Product to the extent Licensee distributes a single copy of Licensee's Product for use by multiple users.


1.2 "Software" means the Java(TM) software product in binary code form identified in Exhibit A (collectively "Exhibit A") and any Upgrades.


1.5 "Upgrade" means bug fixes, modifications, variations, and enhancements, to the extent included in a patch or dot release of the Software which Sun generally licenses as part of the Software during the term of this License, unless otherwise specified in Exhibit A.


2. LICENSE TO DISTRIBUTE


Subject to the terms and conditions contained in this License, Sun hereby grants to Licensee, solely for the Field(s) of Use, the right to reproduce and distribute the Software when incorporated as part of Licensee's Product, provided that Licensee:


(i) does not remove or alter any proprietary legends or notices contained
in the Software;


(ii) enters into a signed agreement with its distributors on terms
substantially similar to those contained herein; and


1


(iii) requires an end user license agreement including in substance, the
provisions of Sections 3, 11 and 13, as well as any additional Software
specific terms and conditions specified in Exhibit A.


3. RESTRICTIONS.


Software is confidential copyrighted information of sun and title to all copies is retained by Sun and/or its licensors. Licensee shall not decompile, disassemble, decrypt, extract, or otherwise reverse engineer Software. Software may not be leased or assigned in whole or in part. Software is not designed or intended for use in on-line control of aircraft, air traffic, aircraft navigation, or aircraft communications; or in the design, construction, operation or maintenance of any nuclear facility. Sun disclaims any express or implied warranty of fitness for such uses.


4. MAINTENANCE AND SUPPORT.


This License does not include maintenance and support of Software by Sun. Licensee shall be solely responsible for providing maintenance and support for its distributors and end users.


5. ROYALTY PAYMENTS, TAXES AND RECORDS.


5.1 Unless otherwise specified in Exhibit C, payment of Per Unit Royalties shall be made quarterly, shall be due thirty (30) days following the end of the calendar quarter to which they relate and shall be submitted with a written statement documenting the basis for the royalty calculation.


5.2 All payments required by this License shall be made in United States dollars, are exclusive of taxes, and Licensee agrees to bear and be responsible for the payment of all such taxes, including, but not limited to, all sales, use, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with this License (excluding only taxes based on Sun's net income).


5.3 Licensee shall maintain accounts books and records consistent with Generally Accepted Accounting Principles appropriate to Licensee's domicile, as may be in effect from time to time, sufficient to allow the correctness of the royalties required to be paid pursuant to this License to be determined. Sun may have Licensee's accounts audited by an independent auditor, once each calendar year upon reasonable notice (unless discrepancies are discovered in excess of five percent (5%) threshold set forth in Section 5.4, in which case two consecutive quarters per year may be audited).


5.4 Any discrepancy revealed by Sun's audit shall be addressed by an adjustment in the amount due in the quarter in which the discrepancy is discovered. If the audit reveals an underpayment of more than five percent (5%), Licensee shall pay: (i) interest on the unpaid portion at the maximum rate permitted by law; and (ii) all costs of the audit.


6. TRADEMARKS AND LOGOS


Unless otherwise authorized in Exhibit A, this License does not authorize Licensee to use any Sun name, trademark or logo. Licensee acknowledges that Sun owns the Java trademark and all Java-related trademarks, logos and icons including the Coffee Cup and Duke ("Java Marks") and agrees to: (i) comply with the Java Trademark Guidelines at http://java.sun.com/trademarks.html; (ii) not do anything harmful to or inconsistent with Sun's rights in the Java Marks; and (iii) assist Sun in protecting those rights, including assigning to Sun any rights acquired by Licensee in any Java Mark.


7. DISCLAIMER OF WARRANTY.


Sun represents and warrants that the media on which the Software is recorded, if any, will be free from defects in materials and workmanship for a period of ninety (90) days after delivery. Sun's sole liability with respect to breach of this warranty is to replace the defective media. Except as expressly provided in this Section 7, Software is provided "AS IS", without a warranty of any kind. ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY


2


OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.


8. LIMITATION OF LIABILITY.


IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF SUN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE'S SOLE AND EXCLUSIVE REMEDY ARISING FROM ANY BREACH OF THIS AGREEMENT BY SUN SHALL BE LIMITED TO A REFUND OF THE PER UNIT ROYALTIES PAID TO SUN DIRECTLY RELATING TO THE NUMBER OF UNITS OF LICENSEE'S PRODUCT THAT LICENSEE HAS TO REFUND TO LIECENSEE'S CUSTOMERS AS A RESULT OF SUCH BREACH, IF ANY.


9.0 LIMITED INDEMNITY


9.1 Sun will defend, at its expense, any legal proceeding brought against Licensee, to the extent it is based on a claim that use of the Software is a misappropriation of a third party trade secret or an infringement of a third party copyright in a country that is a signatory of the Berne Convention, and will pay all damages awarded by a court of competent jurisdiction attributable to such claim, provided that Licensee: (i) provides notice of the claim promptly to Sun; (ii) gives Sun sole control of the defense and settlement of the claim; (iii) provides to Sun, at Sun's expense, all available information, assistance and authority to defend; and (iv) has not compromised or settled such proceeding without Sun's prior written consent.


9.2 Should the Software or any portion thereof become, or in Sun's opinion likely to become, the subject of a claim of infringement or misappropriation for which indemnity is provided under Section 9.1, Sun shall, as Licensee's sole and exclusive remedy, elect to: (i) obtain for Licensee the right to use the Software; (ii) replace or modify the software so that it becomes non-infringing; or (iii) if neither (i) nor (ii) are commercially practical, accept the return of the Software and grant Licensee a refund on any prepaid royalties, for which Licensee is unable to distribute Licensee's Product.


9.3 Sun shall have no liability for any infringement or claim which results from: (i) use of other than a current unaltered version of the Software, if such version was made available to Licensee; or (ii) use of the Software in combination with any non-Sun-provided equipment, software or data if the Software would not otherwise infringe.


9.4 THIS SECTION 9.0 STATES THE ENTIRE LIABILITY OF SUN WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY AS A RESULT OF USE, LICENSE, OR SALE OF THE SOFTWARE.


9.5 Except for claims for which Sun is obligated to indemnify Licensee under Section 9.1, Licensee shall defend, at Licensee's expense, any and all claims brought against Sun by third parties, and shall pay all damages awarded by a court of competent jurisdiction, or such settlement amount negotiated by Licensee, arising out of or in connection with Licensee's use, reproduction or distribution of the Software or Licensee's Product. Licensee's obligation to provide indemnification under this Section 9.5 shall arise provided that Sun: (i) provides notice of the claim promptly to Licensee; (ii) gives Licensee sole control of the defense and settlement of the claim; (iii) provides to Licensee, at Licensee's expense, all available information, assistance and authority to defend; and (iv) has not compromised or settled such proceeding without Licensee's prior written consent.


10. TERM AND TERMINATION


3


10.1 This License shall have a term of twenty four (24) months from the Effective Date unless otherwise specified in Exhibit C, provided that either party may terminate this License in the event the other party is in material breach and has not cured such breach within thirty (30) days after written notice by the other party and an opportunity to cure within such thirty days, or upon any action for infringement of any patent relating to the Software by Licensee against Sun or any Sun" licensees of the Software.


10.2 Unless otherwise specified in Exhibit A, upon expiration of this License, Licensee shall be authorized to distribute Licensee Product(s) containing the version of the Software incorporated therein at the time of expiration, subject to Licensee's continued compliance with the terms of this License, including payment of Per Unit Royalties. All other rights of Licensee shall terminate upon expiration or termination of this License except that all end user licenses issued for Licensee's Products prior to such expiration or termination shall remain in full force and effect according to their terms.


10.3 Neither party shall have the right tot recover damages, nor to indemnification of any nature, whether by way of lost profits, expenditures for promotion, payment for goodwill or otherwise made in connection with the business contemplated by this Agreement, due to the expiration or permitted or lawful termination of this Agreement. EACH PARTY WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT.


11. EXPORT REGULATIONS.


All Software, including technical data delivered under this License is subject to U.S. export control laws a
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |