ACER-Microsoft OEM agreement
Date: March 1995
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.