(1980) IS SPECIFICALLY EXCLUDED FROM APPLICATION TO THIS AGREEMENT.
5
(d)
Severability.
If any provision of
this Agreement is unenforceable or invalid under applicable law, such provision
shall be changed and interpreted to best accomplish the objectives of the
original provision to the fullest extent allowed by law and the remaining
provisions of this Agreement shall remain in full force and effect.
(E)
EXPORT.
NCD SHALL BE FULLY AND SOLELY
RESPONSIBLE FOR SECURING ANY AND ALL PERMITS AND LICENSES IN ORDER TO EXPORT THE
THINSTAR BRANDED PRODUCTS SET FORTH IN EXHIBIT B.
(F)
ATTORNEY'S FEES.
IN THE EVENT ANY PROCEEDING OR LAWSUIT IS BROUGHT BY
EITHER PARTY TO ENFORCE ITS RIGHTS HEREUNDER, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER ITS COSTS, INCLUDING EXPERT WITNESS FEES AND REASONABLE
ATTORNEYS' FEES.
(G)
HEADINGS.
HEADINGS ARE USED IN THIS AGREEMENT FOR CONVENIENCE ONLY AND
SHALL NOT AFFECT ANY CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT.
(H)
ASSIGNMENT. THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT
OF NEOWARE AND NCD AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS; PROVIDED,
HOWEVER, THAT NCD SHALL NOT DIRECTLY OR INDIRECTLY TRANSFER OR ASSIGN THIS
AGREEMENT OR ANY PART HEREOF WITHOUT THE PRIOR WRITTEN CONSENT OF NEOWARE.
ANY
ASSIGNEE OF NEOWARE SHALL BE OBLIGATED TO PERFORM ALL OF NEOWARE'S OBLIGATIONS
HEREUNDER.
SUBJECT TO THE FOREGOING, THIS AGREEMENT IS NOT INTENDED TO BENEFIT,
AND SHALL NOT RUN TO THE BENEFIT OF OR BE ENFORCEABLE BY, ANY OTHER PERSON OR
ENTITY OTHER THAN THE PARTIES HERETO AND THEIR PERMITTED SUCCESSORS AND ASSIGNS.
(I)
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING THE EXHIBITS ATTACHED
HERETO, IS THE COMPLETE AGREEMENT BETWEEN NEOWARE AND NCD AND SUPERSEDES ANY
PRIOR AGREEMENTS BETWEEN NEOWARE AND NCD RELATING TO THE SUBJECT MATTER HEREOF.
THIS AGREEMENT SHALL NOT BE MODIFIED EXCEPT BY A PROPERLY EXECUTED WRITTEN
AGREEMENT.
(J)
SURVIVAL.
THE PROVISIONS OF SECTIONS 2 ("OWNERSHIP"), 3
("INDEMNIFICATION"), 4 ("NO WARRANTY; DISCLAIMER"), 5 ("LIMITATION OF
LIABILITY"), 6 ("INJUNCTIVE RELIEF"), 7 (PUBLICITY), 8 ("CONFIDENTIAL
INFORMATION"), 9(C) ("RIGHTS UPON TERMINATION") AND 11 ("GENERAL") SHALL SURVIVE
TERMINATION OR EXPIRATION OF THIS AGREEMENT OR THE LICENSES GRANTED HEREUNDER.
(K)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED SIMULTANEOUSLY IN TWO OR
MORE COUNTERPARTS, EACH OF WHICH WILL BE CONSIDERED AN ORIGINAL, BUT ALL OF
WHICH TOGETHER WILL CONSTITUTE ONE AND THE SAME INSTRUMENT.
6
IN WITNESS WHEREOF, Neoware and NCD have caused this Agreement to be executed by
their duly authorized representatives as of the date first written above.
NETWORK COMPUTING
NEOWARE SYSTEMS, INC.
DEVICES, INC.
By
/s/ Guenther Pfaff
By:
/s/ Michael Kantrowitz
Name:
Guenther Pfaff
Name:
Michael Kantrowitz
Title:
Chief Executive Officer
Title:
Chief Executive Officer
7
Exhibit A
ThinSTAR Software:
All software used in the NCD ThinSTAR 200, 300, 400, and 500 Series product
lines,
resident in the NCD ThinSTAR thin client flash PROM and BOOT ROM.
Boot ROM validates integrity of the file system and may initiate a reload of the
software
System can be reinitialized by the user.
The ThinSTAR can load in additional or replacement