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Amendment X as Text |
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Friday, November 07 2003 @ 09:20 PM EST
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Here is the famous Amendment X, which is SCO's Exhibit D, available on their web site. It is also mentioned in IBM's Counterclaims and it is Exhibit G and is explained as to its significance in paragraphs 60-62 of IBM's Amended Counterclaims, specifically as Novell's authority to intervene and block SCO's alleged termination of IBM's AIX rights: "On October 17, 1996, after Novell and Original SCO acquired AT&T's rights to Unix, IBM obtained additional rights with respect to Unix software. Pursuant to an agreement known as Amendment X, entered into by IBM, Novell and Original SCO, IBM acquired, for example, the "irrevocable, fully paid-up, perpetual right to exercise all of its rights" under the AT&T Agreements. A copy of this agreement is attached hereto as Exhibit G. . . . "On June 9, 2003, in response to SCO's actions, and pursuant to its obligations under Amendment X, Novell stated its belief that SCO has no right to terminate IBM's UNIX License which is perpetual and irrevocable, and Novell exercised its retained rights to UNIX to put a stop to SCO's misconduct. Under Section 4.16(b) of the Asset Purchase Agreement between Novell and Original SCO dated September 19, 1995 ('APA'), attached hereto as Exhibit J, Novell directed SCO to 'waive any purported right SCO may claim to terminate IBM's [UNIX] licenses enumerated in Amendment X or to revoke any rights thereunder, including any purported rights to terminate asserted in SCO's letter of March 6, 2003 to IBM'. A copy of Novell's June 9, 2003 letter is attached hereto as Exhibit K."
The original has three copies of the last page, identical except for the signatures -- a different signature on each copy -- which we have collapsed into a single page.
As always, please let me know about any errors you catch.
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INTERNATIONAL BUSINESS MACHINES CORPORATION
THE SANTA CRUZ OPERATION, INC.
NOVELL, INC.
Amendment No. X to Software Agreement SOFT-00015 as amended,
Sublicensing Agreement SUB-00015A as amended,
Software Agreement SOFT-00015 Supplement No. 170 as amended,
and Substitution Agreement XFER-00015B
This amendment("Amendment No.X") is between International Business Machines
Corporation, a New York corporation, with a place of business at Old Orchard Road, Armonk,
New York 10504 ("IBM"), The Santa Cruz Operation, Inc. ("SCO") with a place of business at
400 Encinal Street, Santa Cruz, California 95061-1900, and Novell, Inc., a Delaware corporation,
with a place of business at 2180 Fortune Drive, San Jose, California 95131 ("Novell"). This
Amendment No. X becomes effective when executed by an authorized representative of Novell,
SCO, and IBM (the "Effective Date").
RECITALS
AT&T Technologies, Inc. ("AT&T") and IBM entered into various software license
agreements concerning the Software Product: UNIX System V, Release 3.2, which are Software
Agreement SOFT-00015 as amended, Sublicensing Agreement SUB-00015A as amended,
Software Agreement SOFT-00015 Supplement No. 170 as amended (or any other Supplements
that pertain to prior versions or releases of the Software Product), and Substitution Agreement
XFER-00015B (the "Related Agreements"). Novell acquired AT&T's rights under the Related
Agreements. In an agreement between Novell and SCO dated September 19, 1995 (the "Asset
Purchase Agreement"), SCO purchased, and Novell retained, certain rights with respect to the
Related Agreements. In an effort to simplify the royalty requirements contained in the Related
Agreements, the following modifications to the terms and conditions of the Related Agreements
have been mutually agreed to by the parties. Capitalized terms in the Amendment will have the
meanings assigned to them in this Amendment No. X. All capitalized terms not defined herein
will have the meanings assigned to them in the Related Agreements and such defined terms in
the Related Agreements appear in all capitalized letters.
AMENDMENT NO. X
Novell, SCO, and IBM agree as follows:
1 No Additional Royalty. Upon payment to SCO of the consideration in the section entitled
"Consideration", IBM will have the irrevocable, fully paid-up, perpetual right to exercise
all of its rights under the Related Agreements beginning January 1, 1996 at no additional
royalty fee. However, if IBM requests delivery of additional copies of source code of the
Software Product, IBM will pay the fees listed under Section 1(b) of Soft-00015
Supplement No. 170. Notwithstanding the above, the irrevocable nature of the above
rights will in no way be construed to limit Novell's or SCO's rights to enjoin or otherwise
prohibit IBM from violating any and all of Novell's or SCO's rights under this
Amendment No. X, the Related Agreements, or under general patent, copyright, or
trademark law.
2 Relief of 2.05(b) and 2.05(c) of SUB-00015A; Sublicensing of Software Products
(Sources).
2.1 Contractors. Subject to the limitations set forth below in Section 3, Section
2.05(b) and the second sentence of Section 2.05(c) will not apply to contractors to
whom IBM provides Software Products, provided that: (i) any use of such
Software Products by such contractor is solely for Authorized Purposes in support
of the contractor's distribution and support of Sublicensed Products; and (ii) if
any such contractor is not a source code licensee for the relevant version of
Software Product and previous releases, IBM will require such contractor to
certify in writing to SCO, upon SCO's request, that any use by such contractor of
such source code is as a contractor of IBM. For the purposes of this exemption,
"Authorized Purpose" means making modifications to the Software Products, and
furnishing such modifications to IBM and/or distribution of such modifications of
Sublicensed Products in binary form by the contractor to customers directly or
through other Distributors, provided that such modifications are not for purposes
of adaptation of Sublicensed Products to other system manufacturers' hardware
systems and are solely to: (i) adapt the Sublicensed Products to support unique
hardware features or devices (e.g. specialized graphics, adapters, or displays)
intended for use in vertical applications; or (ii) provide fixes to customers of the
Sublicensed Product.
2.2 Customers. Subject to the limitations set forth below in Section 3, a customer to
whom IBM provides a Software Product for use in support of the customer's use
of the Sublicensed Product received from IBM directly or through IBM's
Distributors shall be deemed to be a contractor of IBM if the customer's use of the
Software Product otherwise complies with the requirements of paragraph 3 of the
February 1, 1985 amendment to SOFT-00015. This Section 2.2 neither expands
or restricts such customers' right, if any, to distribute Software Products or
Sublicensed Products.
3. Source Code Library. The following Section 3 of this Amendment applies to activities
contemplated by Section 2 of this Amendment only and does not apply to or obligate
IBM with respect to activities described elsewhere in the Related Agreements. IBM may
license a Software Product in source code form to an eligible contractor or customer for
such contractor's or customer's use in accordance with Section 2 (hereinafter referred to
as "Source Copy") subject to the following terms and conditions:
3.1 IBM's right to license or otherwise provide to contractors and/or customers copies
of Software Products pursuant to Section 2 of this Amendment shall be limited to
50 Source Copies at any one point in time. For purposes of calculating the
number of copies outstanding: (i) in the event that IBM provides more than one
Source Copy to a single customer or contractor, such additional Source Copy or
copies will be applied against the 50 copy limitation; (ii) however, multiple
Source Copies licensed for use on the same CPU or multiple Source Copies on
different CPUs within a scalable parallel or multiprocessor complex contained in
a series of co-located cabinets will be counted as one Source Copy; and (iii) when
a contractor or customer has completed its use of a Source Copy, and either
returns the Source Copy to IBM or provides IBM with certification as described
below that the Source Copy has been destroyed, the number of Source Copies
then outstanding will be reduced by one.
3.2 IBM will maintain pertinent records regarding IBM's issuance of Source Copies
and the return or certified destruction of Source Copies by contractors and
customers.
3.3 SCO has the right to Audit (see definition in 3.6 below) IBM's pertinent records,
at SCO's expense. However, IBM will pay for the cost of such Audit if the Audit
reveals IBM's licensing of the Source Copies materially violates the terms and
conditions of this Amendment. In addition, IBM agrees that IBM's contracts with
contractors and customers for Source Copies distributed pursuant to Section 2.1
and 2.2 of this Amendment will contain a provision which allows SCO to conduct
an Customer/Contractor Audit (see definition in 3.6 below) of such customer
and/or contractor.
3.4 If IBM management acquires actual knowledge that a contractor or customer is
using the Source Copy in material violation of the applicable use restrictions
contained in its license agreement with IBM, IBM will within a reasonable time,
but in no event later than thirty days of acquiring such knowledge, notify SCO of
such violation; further, IBM will, as IBM may elect, either: (i) take appropriate
action to remedy the violation; or (ii) IBM will at SCO's expense cooperate with
SCO in SCO's action to remedy the violation.
3.5 IBM will require all contractors and customers to whom IBM licenses a Source
Copy to enter into an agreement with IBM in which such customer or contractor
agrees: (a) to comply with the applicable use restrictions set forth in Section 2
above; (b) upon termination of the contractor's or customer's use of the Source
Copy, the customer or contractor will return the Source Copy to IBM or cause its
representative to certify in writing that the Source Copy has been destroyed.
3.6 For purposes of Amendment No. X, "Audit" will mean: an audit by an
independent accounting firm chosen by SCO, the results of which, including the
names of contractors and customers to whom IBM has licensed Source Copies,
will remain confidential and only known to the selected independent auditor,
unless such auditor concludes that there has been a material violation of the terms
of this Amendment. In the event such auditor determines that there has been a
material violation of the terms of this Amendment, the auditor may provide to
SCO information the auditor reasonably determines necessary for SCO to enforce
its rights under this Amendment. SCO's right to audit IBM shall be limited to
one (1) Audit per year conducted during normal business hours and shall be
contingent upon SCO reasonably and objectively believing tht IBM has licensed
Source Copies in material violation of the terms and conditions of this
Amendment. For purposes of Amendment No. X, "Customer/Contractor Audit"
will mean: an audit by an independent accounting firm chosen by SCO, the
results of which will remain confidential and only known to the selected
independent auditor, unless such auditor concludes that there has been a material
violation of the terms of this Amendment. In the event such auditor determines
that there has been a material violation of the terms of this Amendment, the
auditor may provide to SCO information the auditor reasonably determines
necessary for SCO to enforce its rights under this Amendment. SCO's right to
audit an IBM customer or contractor shall be limited to one (1) Audit per year
conducted during normal business hours and shall be contingent upon SCO
reasonably and objectively believing that the IBM customer or contractor has used
the Source Copies licensed from IBM pursuant to Sections 2.1 and/or 2.2 of this
Amendment in material violation of the terms and conditions of this Amendment.
3.7 The following illustrations are intended to clarify and illustrate the relief provided in
Subsection 2.1 of this Amendment.
Company A, sublicensee of the Sublicensed Product, is a general computer
system manufacturing firm. IBM may distribute Source Copies to Company A
for the Authorized Purpose.
However, IBM may not distribute Source Copies to Company A for purposes of
making modifications to adapt the Sublicensed Products as a general operating
system for Company A's general computer hardware system.
Notwithstanding the foregoing, IBM may distribute Source Copies to a
development organization of Company A that produces unique hardware devices
(e.g., specialized graphics, adapters, or displays) intended for use in vertical
applications, for the purpose of adapting the Sublicensed Products to support such
unique hardware devices.
4 Consideration. As consideration for the above modifications to the terms and conditions
of the Related Agreements, IBM agrees to pay SCO a nonrefundable fee of $10,125,000
per the following payment schedule: $4,860,000 due on the Effective Date of this
Amendment No. X (net 30 days); and $5,265,000 due on January 1, 1997 (net 15 days).
5 Authority.
5.1 Novell represents and warrants to IBM that it has the unrestricted right and
authority to enter into and execute this Amendment.
5.2 SCO represents and warrants to IBM that it has the unrestricted right and
authority to enter into and execute this Amendment.
6 Restriction on fully paid-up License. For a period of five years from January 1, 1996, the
royalty relief described in Section I of this Amendment No. X shall apply only to use or
distribution of the Software Products and Sublicensed Products in the IBM operating
system referred to currently as AIX, any prior version or releases of AIX and derivative
or follow-on version to AIX on the Power or Power PC or Power2 architectures or
derivative or follow-on architectures irrespective of the names of such versions. During
such five year period, any IBM distribution of Software Products or Sublicensed Products
not covered by the preceding sentence, shall be subject to a royalty pursuant to the
Related Agreements, with such royalty to be calculated at the aggregate discount
percentage (80% in the case of Sublicensed Products) in effect at the time of execution of
this Amendment No. X. After such five year period, the royalty relief described in
Section I of this Amendment No. X shall apply to any authorized use or distribution of
the Software Products or Sublicensed Products. The second to last sentence of paragraph
9 of the February 1, 1985 amendment to SOFT-00015 is modified by deleting the words:
"and employees of Licensee shall not refer to the physical documents and materials
comprising Software Products subject to this Agreement when they are developing any
such products or services or providing any such service."
7 Notwithstanding anything to the contrary in the Related Agreements, with respect only to
Software Products and Sublicensed Products to which the paid up rights in Section I
apply: (a) Designated CPUs are not required to be listed in a Supplement to
SOFT-00015, and IBM may copy such Software Products as replacements or additions to
Designated CPUs without notice to, or consent of, Novell or SCO; and (b) Section V of
SUB-00015A shall not apply to such Sublicensed Products.
8 The Amendment dated April 26, 1996 between IBM, and Novell, on behalf of itself and
SCO, is hereby replaced in its entirety. Except as modified herein, all other terms and
conditions of the Related Agreements will remain in effect. This Amendment No. X does
not give IBM any additional rights to distribute the Software Product in source code form
other than as modified in Section 2 and 3 of this Amendment No. X.
9 Confidentiality. For a period of two (2) years, this Amendment No. X and the replaced
amendment dated April 26, 1996 are confidential and each party will not issue press
releases publicizing, and will use reasonable efforts not to otherwise disclosed, the
commercial and legal details of this Amendment No. X, the replaced amendment or their
subject matters without the other parties' prior written approval. Notwithstanding the
foregoing, each party shall be permitted to disclose to third parties non-financial
information dealing with the commercial and legal details of this Amendment as part of a
transaction authorized by this Amendment provided that such disclosure is subject to
confidentiality terms consistent with the terms of this Agreement. Also, disclosure by
any party of commercial and legal details of this Amendment shall not be restricted if
such disclosure is:
9.1 in response to a valid order of a court or other governmental body or any political
subdivision thereof; provided, however, that the party proposing to make such
disclosure will first have made a reasonable effort to obtain a protective order
requiring that the information so disclosed be used only for the purposes for
which the order was issued; or
9.2 necessary to establish rights under this Amendment in a court or administrative
proceeding.
10 Indemnification; Limitations on Liability.
10.1 Subject to the limitations of liablility below, Novell agrees to indemnify and hold
harmless IBM and IBM Subsidiaries from and against any and all losses,
liabilities, judgments, and costs incurred as a result of any alleged or actual Novell
breach of Novell's representation and warranty in Section 5.1 of this Amendment.
Novell's indemnification of IBM shall be limited to the amount paid by IBM to
SCO under this Amendment. In addition, provided that IBM has paid full
consideration in accordance with this Amendment, Novell's indemnification to
IBM shall also include the amount of any additional royalties paid to SCO by
IBM if IBM would not have been obligated to pay such additional royalties absent
such breach. Novell will defend at its sole expense any suits or proceedings
related to the above indemnification provided that IBM gives Novell prompt
notice and control of any claim of which it learns. Novell will have the right to
choose legal counsel and IBM will have the right to participate in the defense of
any such claim, provided that Novell will not be responsible for indemnifying
IBM for the cost of IBM's attorney's fees. In no event will Novell be liable for
any indirect, incidental, special, punitive or consequential damages, lost revenues,
or profits, data, or use incurred by IBM however caused, no matter what theory of
liability, even if Novell has been advised of the possibility of such damages.
10.2 Subject to the limitations on liability below, SCO agrees to indemnify and hold
harmless IBM and IBM Subsidiaries from and against any and all losses,
liabilities, judgments, and costs incurred as a result of any alleged or actual SCO
breach of SCO's representation and warranty in Section 5.2 of this Amendment.
SCO's indemnification of IBM shall be limited to the amount paid by IBM to
SCO under this Amendment. In addition, provided that IBM has paid full
consideration in accordance with this Amendment, SCO's indemnification to IBM
shall also include the amount of any additional royalties paid to SCO by IBM if
IBM would have not been obligated to pay such additional royalties absent such
breach. SCO will defend at its sole expense any suits or proceedings related to the
above indemnification provided that IBM gives SCO prompt notice and control of
any claim of which it learns. SCO will have the right to choose legal counsel and
IBM will have the right to participate in the defense of any such claim, provided
that SCO will not be responsible for indemnifying IBM for the cost of IBM's
attorney's fees. In no event will SCO be liable for any indirect, incidental,
special, punitive, or consequential damages, lost revenues, or profits, data, or use
incurred by IBM however caused no matter what theory of liability, even if SCO
has been advised of the possibility of such damages.
11 Except as modified herein, all other terms and conditions of the Related Agreements will
remain in effect.
INTERNATIONAL BUSINESS
MACHINES
By: {signature of Craig Schneider}
CRAIG SCHNEIDER
(Print or Type Name)
SR Contract Administrator
(Title)
10-17-96
(Date)
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THE SANTA CRUZ OPERATION, INC.
By: {signature of Steven M Sabbath}
Steven M. Sabbath
(Print or Type Name)
Vice President, Law and Corporate Affairs
(Title)
16 October 1996
(Date)
NOVELL, INC.
By: {signature of James R Tolonen}
James R Tolonen
(Print or Type Name)
10/16/96
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Authored by: Anonymous on Saturday, November 08 2003 @ 02:13 AM EST |
Since the refer to it...
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9. Amend Section 7.06(a)
by replacing such section with the following:
--7.06(a) LICENSEE agrees
that it shall hold SOFTWARE PRODUCTS subject to this agreement in confidence for
AT&T. LICENSEE further agrees that it shall not make any disclosure of such
SOFTWARE PRODUCT to anyone, except to employees of LICENSEE to whom such
disclosure is necessary to the use for which rights are granted herunder.
LICENSEE shall appropriately notify each employee to whom any such disclusure is
made that such disclosure is made in confidence and shall be kept in confidence
by such employee. Nothing in this agreement shall prevent LICENSEE from
developing or marketing products or services employing ideas, concepts, know-how
or techniques relating to data processing in SOFTWARE PRODUCTS subject to this
agreement, provided that LICENSEE shall not copy any code from such SOFTWARE
PRODUCTS into any such product or in connection with any such service and
employees of LICENSEE shall not refer to the physical documents and materials
comprising SOFTWARE PRODUCTS subject to this agreement when they are developing
any such products or service or providing any such service.
If
information relating to a SOFTWARE PRODUCT subject to this Agreement at any time
becomes available without restriction to the general public by acts not
attributable to LICENSEE or its employees, LICENSEE'S obligations under this
section shall not apply to such information after such
time.--
**************************** [ Reply to This | # ]
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- Feb 1 '85, G 9 - Authored by: tuxi on Saturday, November 08 2003 @ 02:24 AM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 02:26 AM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 02:46 AM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 07:30 AM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 01:52 PM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 03:21 PM EST
- This seems really clear to me - Authored by: DaveAtFraud on Saturday, November 08 2003 @ 05:00 AM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 07:45 AM EST
- Feb 1 '85, G 9 - Authored by: arch_dude on Saturday, November 08 2003 @ 10:25 AM EST
- Feb 1 '85, G 9 - Authored by: ra on Saturday, November 08 2003 @ 11:56 AM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 02:41 PM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Sunday, November 09 2003 @ 08:08 PM EST
- Feb 1 '85, G 9 - Authored by: Christian on Saturday, November 08 2003 @ 01:08 PM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 02:24 PM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 08:48 PM EST
- Feb 1 '85, G 9 - Authored by: Anonymous on Saturday, November 08 2003 @ 12:59 PM EST
- Grim Reaper - Authored by: dmomara on Saturday, November 08 2003 @ 08:12 AM EST
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Authored by: Anonymous on Saturday, November 08 2003 @ 02:15 AM EST |
What exactly is referred to in Paragraph 8? [ Reply to This | # ]
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Authored by: whoever57 on Saturday, November 08 2003 @ 02:49 AM EST |
irrevocable, fully paid-up, perpetual
Each one of those words
will be presumed to have meaning, individually, so SCO can only get an
injunction to stop a specific infringing behaviour. Distribution of AIX was
never an infringement of the contract, so SCO has to be on the hook for massive
damages for "revoking" IBM's "AIX license".
--- -----
For a
few laughs, see the scosource.com website [ Reply to This | # ]
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Authored by: John Douglas on Saturday, November 08 2003 @ 02:54 PM EST |
'3.3 SCO has the right to Audit (see definition in 3.6 below) IBM's
pertinent records, at SCO's expense. However, IBM will pay for the cost of
such Audit if the Audit reveals IBM's licensing of the Source Copies materially
violates the terms and conditions of this Amendment. In addition, IBM agrees
that IBM's contracts with contractors and customers for Source Copies
distributed pursuant to Section 2.1 and 2.2 of this Amendment will contain a
provision which allows SCO to conduct an Customer/Contractor Audit (see
definition in 3.6 below) of such customer and/or contractor.'
So in theory, if SCO believed IBM was up to no good, they should have requested
an audit to find out?
---
As a Safety Critcal/Firmware Engineer, everything I do is automatically
incorrect until proven otherwise. (This is the only aspect of my work that my
wife under[ Reply to This | # ]
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Authored by: eric76 on Saturday, November 08 2003 @ 07:13 PM EST |
I'm not really sure where to put this, but this looked as good as anything.
I read somewhere a few months ago that when Novell sold the Unix rights that
they sold to Santa Cruz Organization, they still receive most of the licensing
fees and that Santa Cruz Organization basically kept something like 5% to act as
agents for Novell.
I may have misunderstood that completely.
Maybe it just applies to the renewal fees for licenses that were already there
and any fees from the sale of new licenses going entirely to SCO.
But if it is true, then wouldn't a large portion of Microsoft's infusion of
cash to SCO go to Novell?
It would be interesting if some 5% or so of the cost of Novell's acquisition of
SuSE was from Microsoft.
Does anyone know whether or not Novell makes anything off the sale of SVR4
licenses, and if so, how much?[ Reply to This | # ]
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Authored by: Anonymous on Saturday, November 08 2003 @ 10:23 PM EST |
I just came across
this
comment on Slashdot. What would happen to
this case if SCO managed to buy
Novell?
[ Reply to This | # ]
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Authored by: Anonymous on Monday, November 10 2003 @ 02:45 PM EST |
1 No Additional Royalty. Upon payment to SCO of the consideration in the
section entitled "Consideration", IBM will have the irrevocable, fully paid-up,
perpetual right to exercise all of its rights under the Related Agreements
beginning January 1, 1996 at no additional royalty fee. However, if IBM
requests delivery of additional copies of source code of the Software Product,
IBM will pay the fees listed under Section 1(b) of Soft-00015 Supplement No.
170. Notwithstanding the above, the irrevocable nature of the above rights
will in no way be construed to limit Novell's or SCO's rights to enjoin or
otherwise prohibit IBM from violating any and all of Novell's or SCO's rights
under this Amendment No. X, the Related Agreements, or under general patent,
copyright, or trademark law.
SCO is sure to bring this up if the
ammendment is used against them.[ Reply to This | # ]
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