The following is the full, unmodified text of SCO's "intellectual property
Linux," as received from the company on August 6, 2003.
THE SCO GROUP, INC.
COMPLIANCE LICENSE FOR LINUX
This Intellectual Property Compliance License Agreement for Linux
("Agreement") is made and entered into on the date last executed by and
between The SCO Group, Inc., for itself or its Subsidiaries
(collectively referred to herein as ("SCO"), a corporation of the State
of Delaware, with its place of business at 355 South 520 West, Suite
100, Lindon, Utah 84042, U.S.A., and __________________ ("Company"), a
corporation of the State of ___________________, with its place of
business at ______________________________________.
WHEREAS, SCO is a licensor, manufacturer and distributor of SCO software
and related products and materials, and
WHEREAS, SCO wishes to grant and Company wishes to accept certain
limited rights to use certain SCO software programs, which rights
Company wishes to accept;
NOW, THEREFORE, in consideration of the mutual promises made herein it
is agreed as follows:
1.1 "Code" shall mean computer programming instructions.
1.2 "CPU " shall mean a single physical computer processor.
1.3 "General Purpose Computer System" means a commercially available
system which is intended to be reprogrammable by the end user and is
either (i) intended for primary use as a general purpose business
computer, a personal computer, or a scientific/technical workstation; or
(ii) part of a network configuration whose primary purpose is for
executing general application programs supporting general business,
personal, or scientific/technical activities.
1.4 "Linux Desktop System" means a single user computer workstation
controlled by a single instance of the Linux Operating System. It may
provide personal productivity applications, web browsers and other
client interfaces (e.g., mail, calendering, instant messaging, etc). It
may not host services for clients on other systems.
1.5 "Linux Operating System" shall mean an operating system
distributed under the name Linux or a derivative thereof.
1.6 "Linux Point of Sale/Embedded System" means a computer system,
controlled by a single instance of the Linux Operating System, that can
not be used as a General Purpose Computer System and, as such, is (1)
restricted in normal use to the execution of a predefined set of
special purpose applications, and (2) does not allow an end user,
directly or indirectly, to (i) add or run general purpose application
software; (ii) add or administer users; or (iii) provide system
administration functions other than diagnostics and maintenance.
1.7 "Linux System" shall mean a computer system, containing the
licensed CPUs, controlled by a single instance of the Linux Operating
1.8 "Object Code" shall mean the Code that results when Source Code
is processed by a software compiler and is directly executable by a
1.9 "SCO Product" shall mean the SCO intellectual property in Object
Code format included in any or all of the following: (i) the Software,
(ii) the Updates and (iv) any copy of the Software or Updates; to the
extent made available to You.
1.10 "Software" shall mean the Linux Operating System in Object Code
1.11 "Source Code" shall mean the human-readable form of the Code and
related system documentation, including all comments and any procedural
1.12 "Update" shall mean the updates or revisions in Object Code
format of the Software that You may receive.
2.0 GRANT OF RIGHTS AND OBLIGATIONS
SCO MAKES NO GRANT OF RIGHTS OF ANY KIND WITH RESPECT TO ANY SOFTWARE
OTHER THAN THE SCO PRODUCT COVERED BY THIS AGREEMENT.
THIS AGREEMENT DOES NOT INCLUDE ANY RIGHTS TO ACCESS, USE, MODIFY OR
DISTRIBUTE ANY SCO SOURCE CODE IN ANY FORM UNDER ANY LICENSING
2.1 Provided Company complies fully with this Grant of Rights and
Obligations, SCO will not consider such use of the SCO Product licensed
by Company under this Agreement to be in violation of SCO's intellectual
property ownership or rights.
2.2 This Agreement does not grant a right to receive any
distribution of software from SCO. SCO grants Company a limited and
non-exclusive right to SCO Product under the terms and conditions of
this Agreement. Company acknowledges that it is not granted any other
right except for the rights specifically set forth herein.
2.3 Provided Company provides the Linux System information and pays
SCO the applicable right-to-use license fees required as included
Section 1 of Exhibit A to this Agreement, SCO grants Company the right
to use all, or portions of, the SCO Product only as necessary to use the
Linux Operating System on each Linux System for which the appropriate
CPUs have been licensed from SCO. Company must take reasonable means to
assure that the number of CPUs does not exceed the permitted number of
CPUs. Such right is granted to use the SCO Product in conjunction with
the Linux Operating System solely in Object Code format.
3.0 ORDERS, PRICE AND PAYMENT
3.1 Company's initial order for the right-to-use licenses, including
Linux System details and License Fees, is included in Exhibit A of this
Agreement. SCO shall invoice Company, at the time of execution of this
Agreement, pursuant to the information contained in Section 2 of Exhibit
Caldera shall have the right to increase any list price on thirty (30)
days prior written notice.
3.2 Should Company require to add additional right-to-use licenses
for Linux Systems or additional CPUs, Company shall submit a purchase
order to, and subject to acceptance by, SCO's Sales Administration
Department located at SCO's Santa Cruz, California facility. Such
purchase orders shall state the Linux System details and License Fees
included in Exhibit A of this Agreement and shall reference and bind
Company to the terms and conditions of this Agreement.
3.3 License Fees are exclusive of all applicable taxes. Company
agrees to pay all taxes associated with right-to-use licenses ordered
under this Agreement, including but not limited to sales, use, excise,
added value and similar taxes and all customs, duties or governmental
impositions, but excluding taxes on SCO's net income.
3.4 Payments for shall be due and payable thirty (30) days from
date of invoice. SCO may charge Company interest at the rate of 1 1/2
percent per month, or such maximum rate as may be permitted by law,
whichever shall be less, with respect to any sum that is not paid when
3.5 Company shall make all payments in United States Dollars.
4.0 RECORD KEEPING AND AUDIT
4.1 Company shall keep full, clear and accurate records with respect
to Linux Systems and the number of licensed CPUs per Linux Systems.
Such records shall contain all information necessary to determine
exactly all fees due hereunder. Company shall provide to SCO, upon
request by SCO, reports with such records including the number of copies
of made by Company.
4.2 SCO may cause an audit to be made at its expense (except as
provided herein) of the applicable records to verify statements rendered
hereunder, and prompt adjustment shall be made by the proper party to
compensate for any errors or omissions disclosed by such audit. Any
such audit shall be conducted during regular business hours at Company's
offices and in such a manner as not to interfere with Company's normal
business activities. In the event that an audit discloses an
underpayment by Company to SCO of the greater of five percent (5%) or
the equivalent of Five Thousand United States Dollars ($5,000), then
Company agrees to bear the cost of the audit.
4.3 Upon written request, SCO agrees to make available to Company,
in the event that SCO makes any claim with respect to such audit, its
records and reports pertaining to the audit and any such records and
reports prepared for SCO by third parties.
5.0 TERM OF AGREEMENT; OBLIGATIONS UPON TERMINATION
This Agreement shall remain in effect until terminated as set forth
herein. Company may terminate this Agreement, without right to refund,
by notifying SCO of such termination. SCO may terminate this Agreement,
upon reasonable notice and without judicial or administrative
resolution, if Company or any of Company's employees or consultants
breach any term or condition hereof.
Upon the termination of this Agreement for any reason, all rights
granted to Company hereunder will cease.
6.0 PROPRIETARY NATURE OF SCO PRODUCTS AND OWNERSHIP
6.1 No title to or ownership of the SCO Product is transferred to
Company. Notwithstanding any provision of this Agreement to the
contrary, Company acknowledges that SCO, owns and retains all title and
ownership of all intellectual property rights in the SCO Products.
6.2 SCO Products and related materials, and all copyrights, patent,
trade secret and other intellectual and proprietary rights therein, are
and remain the valuable property of SCO and its suppliers. Company
shall not reverse engineer or decompile, translate, create derivative
works or modify any of the SCO Product. If Company wishes to exercise
any rights under Article 6.1b of the EC Directive on the Legal
Protection of Computer Software (Directive 91/250), Company shall, in
the first instance, write to SCO's Legal Department at the address
7.0 LIMITATION OF WARRANTY
SCO MAKES NO WARRANTIES OF ANY KIND EXPRESSED OR IMPLIED WITH RESPECT TO
ANY SOFTWARE OTHER THAN THE SCO INTELLECTUAL PROPERTY DEFINED BY THIS
SCO WARRANTS THAT IT IS EMPOWERED TO GRANT THE RIGHTS GRANTED HEREIN.
SCO DOES NOT WARRANT THAT THE FUNCTION CONTAINED IN SCO PRODUCT WILL
MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR
ALL WARRANTIES, TERMS, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ANY PARTY OR
OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED. SOME STATES OR COUNTRIES DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU
MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO
8.0 LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL SCO OR ITS REPRESENTATIVES BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES,
WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS OR THOSE OF
YOUR CUSTOMERS (INCLUDING BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA,
GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SCO PRODUCTS, INTERRUPTION
IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF
OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED
WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL
INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH
LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH SCO MAY INCUR
IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU
TO SCO FOR THE LICENSE OF THE SCO PRODUCT THAT DIRECTLY CAUSED THE
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF EXCLUSION OF LIABILITY
FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
9.1 Neither party shall be liable for any delay or failure in its
performance hereunder due to any cause beyond its control provided,
however, that this provision shall not be construed to relieve Company
of its obligation to make any payments pursuant to this Agreement.
9.2 Company may not assign, sublicense, rent, lend, lease, pledge or
otherwise transfer or encumber the SCO Products, this Agreement or any
of the individual licenses granted under it or Company's rights or
9.3 All notices and requests in connection with this Agreement may
be sent or delivered to the addresses above by hand, by certified mail
return receipt requested, by fax, or by courier.
9.4 Support and maintenance are not available under this agreement.
9.5 This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Utah and the United States
of America, specifically excluding the United Nations Convention on
Contracts for the International Sale of Goods, and without giving effect
to conflict of laws. Any litigation or arbitration between the Parties
shall be conducted exclusively in the State of Utah.
Company expressly consents to the jurisdiction of such courts. Process
may be served by U.S. mail, postage prepaid, certified or registered,
return receipt requested, by express courier such as DHL or Federal
Express, or by such other method as is authorized by law. Nothing in
this Section will prevent SCO from seeking injunctive relief against
Company or filing legal actions for payment of outstanding and past due
debts in the courts.
9.6 If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The Parties will seek in good faith to
agree on replacing an invalid, illegal, or unenforceable provision with
a valid, legal, and enforceable provision that, in effect, will, from an
economic viewpoint, most nearly and fairly approach the effect of the
invalid, illegal, or unenforceable provision.
9.7 This shall be the only agreement between the Company and SCO
with respect to the subject matter herein and shall not be modified
unless a written amendment has been signed by one of SCO's and Company's
9.8 This Agreement is signed by Company on behalf of all the
employees and agents entitled by Company to use of . Company undertakes
to make all users of aware of their responsibilities under this
Agreement. This Agreement supercede all prior agreements between SCO
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the last date properly executed by both parties. All
signed copies of this Agreement shall be deemed originals.
THE SCO GROUP, INC. ___________________________________
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