MICROSOFT OEM LICENSE AGREEMENT
WITH MINIMUM COMMITMENT PAYMENTS
A009-5089 dated March 15, 1995
with ACER AMERICA CORPORATION, a corporation of California.
..
2. LICENSE GRANT.
(a) MS grants to COMPANY the non-exclusive, worldwide license rights to
(i) install no more then one (1) copy of Product software on each
Customer System hard dusk or ROM ("Preinstalled Product Software"); and
(ii) directly or indirectly distribute to each end users (in addition to
Preinstalled Product Software) no more than one (1) copy of each Product
software and Product Documentation with each Customer System.
..
(d) COMPANY agrees to make consolidated (ie., on behalf of COMPANY and
COMPANY Subsidiaries) quarterly royalty reports and payments to MS as
specified in Exhibit N within thirty (30) days after the end of each ca
lender quarter, and thirty (30) days after termination or expiration for
the final full or partial quarter.
..
(e) A ten percent (10%) late charge and a one (1%) monthly finance
charge will be assessed on all amounts that are past due, including
receipts for foreign taxes withheld.
..
13 NONDISCLOSURE AGREEMENT
COMPANY shall keep confidential the Product Deliverables, the terms and
conditions of this agreement, and other non-public information and
know-how disclosed to COMPANY by MS.
..
14. AUDITS and INSPECTIONS.
(b) In order to verify statements issued by COMPANY and COMPANY's
compliance with the terms of this Agreement, MS may cause (i) and audit
to be made of COMPANY's and/or COMPANY's Subsidiaries books and records
and/or (ii) an inspection to be made of COMPANY's Subsidiaries
facilities and procedures. An audit and/or inspection shall be conducted
during regular business hours at COMPANY's and/or COMPANY's Subsidiaries
faculties, with or without notice. Any audit shall be conducted by an
independent certified public accountant selected by MS (other than on a
contingent fee basis).
..
(f) COMPANY's license shall extend to Update Releases and Version
Releases. MS may increase royalties for new Version Releases subject to
the following maximum amount: Maximum royalty = R + (R * N * 1.5%),
where R is the initial royalty and N is the number of months that have
elapsed from the Effective Date until MS delivers the new Version
Release. COMPANYS's license shall not extend to Product Releases.
..
3 PAYMENTS AND REPORTING
(3) COMPANY agrees to pay MS the royalties in Exhibit (C). Royalties
exclude any charges by the Authorized Replicator for units of Product,
or APM ordered by COMPANY. Royalties also exclude any taxes, duties,
fees, excises or tariffs imposed on any of COMPANY's Subsidiaries
activities in connection with this Agreement. Such charges, if any,
shall be paid by COMPANY.
(b) COMPANY further agrees to pay MS the minimum commitment payments ..
Exhibit B. To the extent that royalties exceed the cumulative minimum
commitment payments. COMPANY shall pay MS for royalties. To the extent
that cumulative minimum commitment payments exceed royalties, such
excess shall be known as prepaid royalties and shall be recoupable
against future royalties .. during the Initial Terms of this Agreement
and only for the Product .. herein. Minimum commitment and royalty
payments made in one period [shall] be applied to minimum commitment
obligations in another .. Replicator. Once COMPANY has accepted any
release .. minimum commitment payments are not refundable.
..
12 LIMITATION OF LIABILITY AND REMEDY.
(a) MS total liability to COMPANY under this Agreement, including
Section 5 shall be limited to one hundred percent (100%) of the amount
having actually been paid by COMPANY to MS under section 3. COMPANY
releases MS from all obligations, liability, claims or demands in excess
of the limitation.
http://edge-op.org/iowa/www.iowaconsumercase.org/011607/2000/PX02257.pdf
--
court documents in the case of Comes v. Microsoft.
|