SUPPLY AGREEMENT. THIS LICENSE GRANTS EXCLUSIVE USE OF THE THINSTAR
BRAND ONLY, AND DOES NOT GRANT ANY EXCLUSIVE OR NON-EXCLUSIVE USE OF THE
THINSTAR SOFTWARE OR THE NEOWARE SOFTWARE.
(D)
RESTRICTIONS.
NCD SHALL NOT LICENSE, SUBLICENSE, DISTRIBUTE OR RELEASE
THE NEOWARE SOFTWARE (OR ANY DERIVATIVE WORKS THEREOF) OR THE THINSTAR SOFTWARE
(OR ANY DERIVATIVE WORKS THEREOF) ALONE OR WITH ANY SOFTWARE, PRODUCT OR
SERVICE, OR OTHERWISE USE THE NEOWARE SOFTWARE OR THE THINSTAR SOFTWARE OTHER
THAN AS SET FORTH IN THIS AGREEMENT.
2
(E)
TRADEMARKS & COPYRIGHTS.
NCD IS NOT GRANTED ANY RIGHT OR LICENSE TO
DISPLAY OR OTHERWISE USE NEOWARE'S TRADEMARKS UNDER THIS AGREEMENT.
NCD SHALL,
HOWEVER, DISPLAY THE FOLLOWING LANGUAGE IN CONNECTION WITH THE THINSTAR SOFTWARE
:
"INCLUDES NEOWARE THIN CLIENT APPLIANCE TECHNOLOGY, UNDER LICENSE FROM NEOWARE
SYSTEMS, INC.
©2002 NEOWARE SYSTEMS, INC.
ALL RIGHTS RESERVED."
IN ALL COPYRIGHT NOTICES IN PRODUCT LABELS, SOURCE CODE, HELP SCREENS, MANUALS
AND ALL OTHER DOCUMENTATION AND IN THE "ABOUT" WINDOW THAT MAY BE ACTIVATED ON A
USER'S COMPUTER SCREEN WHEN USING THE THINSTAR SOFTWARE OR THE NEOWARE SOFTWARE.
(f)
Ownership.
Neoware retains all right, title and interest,
including all Intellectual Property Rights, in the ThinStar Software and the
Neoware Software and any part thereof as well as in any derivative works of, and
any updates and enhancements to, the ThinStar Software and the Neoware Software,
whether created or developed by Neoware or NCD, and NCD shall have no rights
thereto other than as set forth in Section 2 hereof.
3.
INDEMNIFICATION.
NCD SHALL INDEMNIFY, DEFEND AND HOLD NEOWARE HARMLESS
FROM ANY AND ALL LIABILITY, LOSS, COST, DAMAGE, JUDGMENT OR EXPENSE (INCLUDING
REASONABLE ATTORNEYS' AND EXPERT WITNESSES' FEES AND COSTS) RESULTING FROM OR
ARISING OUT OF (I) ANY MATERIAL BREACH BY NCD OF ANY OF THE TERMS OF THIS
AGREEMENT, OR (II) ANY USE OR MODIFICATION OF THE NEOWARE SOFTWARE OR THE
THINSTAR SOFTWARE OTHER THAN AS PERMITTED IN THIS AGREEMENT WHICH CAUSES DAMAGE
OR LIABILITY TO NEOWARE OR RESULTS IN INFRINGEMENT OF ANY THIRD PARTY'S
INTELLECTUAL PROPERTY RIGHTS.
THIS OBLIGATION IS SUBJECT TO NEOWARE NOTIFYING
NCD PROMPTLY IN WRITING OF THE CLAIM.
4.
NO WARRANTY; DISCLAIMER.
THE NEOWARE SOFTWARE AND THE THINSTAR SOFTWARE
IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND.
NEOWARE DOES NOT WARRANT
THE PERFORMANCE OR RESULTS FROM ANY USE OF THE NEOWARE SOFTWARE OR THE THINSTAR
SOFTWARE.
NEOWARE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
5.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO
EVENT SHALL NEOWARE BE LIABLE TO NCD OR ITS CUSTOMERS FOR ANY CONSEQUENTIAL OR
INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS ARISING OUT OF
THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF NEOWARE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, OR ANY CLAIM AGAINST NCD BY ANY THIRD PARTY.
IN NO
EVENT WILL NEOWARE BE LIABLE FOR ANY REPRESENTATION OR WARRANTY MADE BY NCD TO
ANY THIRD PARTY OR FOR