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An AutoZone Chart and A Santa Cruz License Agreement
Monday, September 07 2009 @ 02:33 AM EDT

I've done a chart for you, showing SCO's new First Amended Complaint [PDF] against long-suffering AutoZone, with AutoZone's Answer [PDF], so you can see them side by side, paragraph by paragraph. I thought that might help us get a handle on what it's now about. We did another chart for you earlier showing SCO's original complaint against AutoZone compared to the new one, so this completes that trilogy.

SCO hasn't changed at all. It hasn't backed off at all. The complaint, however, has changed, and the changes are to cover its back because the Utah District Court ruled that Novell didn't transfer copyrights to Santa Cruz in 1995. At least that is how it strikes me. So it has added two copyrights to its list of registered copyrights, UNIX System V: release 4.2MP (the version that was highlighted in SCO v. Novell) and SCO OpenServer: release 5.0.5. That's because SCO now alleges copyright infringement but also a contract claim related to OpenServer. The other thing that has changed since SCO filed this amended complaint is that SCO management has been replaced by the Chapter 11 trustee, and so we don't know yet if this case will even go forward now. It's up to him, not former management. However, you can see what they *would* have done, if it had been up to them, namely continue to sue Linux end users, not just AutoZone, and this was intended to be the template, I gather. They wanted this to be an object lesson: pay SCO for using Linux. Like I said, they haven't changed at all.

Yes, the appeals court sent the issue of UNIX copyright ownership back for a jury trial, but even it said it looked like the evidence favored Novell, and I agree. But OpenServer is something else again. I don't doubt the ultimate outcome, and SCO may share some worries, too, and so it has changed what it is suing over. SCO never says my bad. It just thinks up new ways to sue you, and with AutoZone, now it's OpenServer copyrights and contracts. Oh, and Linux. It says AutoZone doesn't have a SCOsource license to let it run Linux. So we are back to that.

While it's at it, SCO looks to be wanting a do-over of some claims it wasn't allowed to pursue in SCO v. IBM, because they hid them until too late to use them, regarding methods and ways of doing things. They never give up, these guys. However, they don't run this show any more; there is a Chapter 11 trustee to rationally look at these claims and see if any of them are worth pursuing. Cluebat: no.

AutoZone calmly says SCO has no injury and that AutoZone has rights to any code SCO claims is infringed via license, laches, estoppel, etc. SCO is, after all, suing AutoZone essentially for dropping SCO's OpenServer and switching to Linux, for which SCO would like lots of money in damages and an injunction, so AutoZone can't damage them further by booting up Linux every day, I suppose.

Of all the stupid lawsuits SCO thought up, this one is the second stupidest, in my eyes. But it's also the most malicious, because it's about so little even if every SCO claim were true, and because SCO is trying to get so much money from AutoZone, despite the trivial nature of the claims.

DaimlerChrysler takes the cake of stupidest lawsuit, without a doubt, if you are curious of my top three winners. SCO sued DaimlerChrysler for contract blah de blah, and it turned out DaimlerChrysler hadn't used SCO products for a blessed seven years. All the cells in your body are new by that time, seven years. The slander of title claim against Novell has to rank up there as number three in my hall of fame of all-time SCO stupid claims.

But by the way, look what I just found. I wonder if this might be relevant? It's a Santa Cruz License Agreement which it used for OpenServer and UnixWare, and guess what it says:

In addition, You may make back-up or archival copies of the Software; you may not copy the printed Documentation.
So would that not mean that AutoZone had the right to have back-up or archival copies of OpenServer, since they licensed it? I also don't see any restrictions in the license as to what operating system the software had to be run on. I gather from the wording in the license that if Santa Cruz wanted such restrictions, it added it on to the basic license one customer at a time. But note this sentence at the very end:
In the event of any inconsistency between this Agreement and any other related agreement between SCO and You, the terms of this Agreement will prevail.
Well.

Somebody sent this to me years ago, titling it as being what Compaq got in connection with UnixWare 2.1, but I couldn't prove that in a court of law, so I never used it before, but if you visit this url, you'll find exactly the same language still on SCO's website to this very day, on the old Caldera Java JDK license page. So now that it's confirmed for me, I thought it worthwhile to highlight it. If ever SCO, or Son of SCO, were to try to sue others like AutoZone, this might come in handy. The introduction to the license, which is identical to the license I was sent as far as I can see, reads like this, and AutoZone would fall into the first category listed:

----------------------------------------------------------------------
This Java Development Kit is licensed under one of the following SCO Software License Agreements, depending on where you use this software:

If you are using this JDK with commercial versions of SCO UnixWare or SCO OpenServer, the SCO Software License Agreement for that operating system applies also to this JDK. See below for the English version of this license.

If you are using this JDK with Free SCO OpenServer or Free SCO UnixWare, the additional license terms and conditions relating to the noncommercial, personal, educational use also apply.

If you are using this JDK with a Beta or Early Availability Program operating system release of any SCO product, the license terms and conditions for that release also apply.

Please refer to the license information in your SCO operating system package for more details.

So there you are. The license was used for OpenServer, which is what AutoZone is being sued about. Anyway, I'm guessing that means they have the same allowance, subject to whatever language there is in the specific agreements they signed. This is what the new complaint says about AutoZone's licenses:
21. In 1988, Santa Cruz licensed UNIX System V Release 3.2 from AT&T. As a UNIX licensee, Santa Cruz then developed and marketed OpenServer, based on that UNIX 5 (12) release. In 1995, Santa Cruz purchased the base UNIX technology and the UNIX licensing business from Novell, Inc., which had acquired them from AT&T. In 2001, SCO acquired the base UNIX technology and the UNIX licensing business, as well OpenServer and related products, from Santa Cruz.

22. By the late 1990s, before Linux was transformed into a commercially viable competitor to UNIX, OpenServer was a market leader in worldwide UNIX sales. Today, OpenServer accounts for the majority of SCO's revenues.

23. On May 14, 1990, Santa Cruz entered into an Authorized Industry Reseller Agreement with AutoZone (the "AIRA") granting AutoZone a limited license to "LICENSED PRODUCT," including OpenServer and related products.

24. Under the AIRA, AutoZone obtained the right to use the LICENSED PRODUCT "exactly as shipped . . . by SCO." (AIRA § 1.) The AIRA also provides that AutoZone "may not modify or change LICENSED PRODUCT in any manner" and "may not make or cause to be made any copy of any part of LICENSED PRODUCT." (Id. (emphasis added).) In addition, AutoZone agreed to "modify . . . SCO LICENSED PRODUCT . . . only with SCO's prior permission." (Id. § 2.1.H.)

25. On January 24, 2001, Santa Cruz entered into a Corporate Software License Agreement with AutoZone (the "CSLA"). Section 1.0 of the CSLA, entitled "Grant of Right," provides:

SCO grants Company a non-transferable and non-exclusive license to use the Licensed Products provided to Company under this Agreement and to utilize any SCO Serial Number and Activation Key ("SNAK") or Certificate of License ("COLA") made available to Company to install such Licensed Product on Company's systems worldwide, subject to the terms of this 6 (13) Agreement. Any use of the SNAK and/or COLA shall be in accordance with the terms and conditions set forth herein.
26. The standard COLA provides: "This certificate licenses the software product listed below according to the rights outlined in the Software License Agreement included with your SCO product."

27. Section 3.1 of the CSLA provides:

Company shall have the right to reproduce the Licensed Product as expressly set forth herein. The Licensed Products may not be modified or revised in any way, nor may it be translated or localized in any way without the prior written consent of SCO. All copies of the Licensed Product reproduced by Company shall include the copyright notice of SCO and/or its suppliers and all other proprietary markings. (Emphasis added.)

28. Section 11.2 of the CSLA requires that AutoZone "not reverse engineer or decompile, translate, create derivative works or modify any of the Licensed Product, except as expressly provided herein." (Emphasis added.) The CSLA does not provide any such exception.

29. SCO owns and is the successor-in-interest to all contractual rights arising under and related to the AIRA, CSLA, and COLA.

I think the Software License Agreement they reference is the one I just found, the one that says you can make backup or archival copies. I looked everywhere for the other referenced documents, but I don't find them. If you do, sing out. So we're left to rely on SCO's descriptions for now, which frankly I never do. I'd like to see the documents with my own two eyes.

There are a lot of other changes to the complaint. For example, the original complaint against AutoZone was only about copyright infringement, and to me it was really all about IBM, wanting to do discovery about them. If you recall, SCO accused IBM [PDF] of interfering with its business relationship with AutoZone and others, that IBM "induced SCO's customers and licensees to breach their corporate licensing agreements with SCO".

But then, after the Utah District Court ruled that Novell didn't transfer the UNIX copyrights to SCO in 1995, the older code it wanted to sue people over, now SCO had to figure out something else to sue about, if it wanted to continue to sue AutoZone, and of course it did. So now SCO has added this to the amended complaint:

SCO also seeks relief under applicable contract law to compensate SCO for damages it has sustained as a result of AutoZone's breach of the agreements through which it obtained limited licenses to OpenServer and related materials. SCO also seeks relief under the Copyright Act to compensate SCO for damages it has sustained as a result of AutoZone's unlawful use of OpenServer and related products outside the scope of those limited licenses.
SCO has also added some slices of baloney about UnixWare:
Over the years, AT&T and its successors progressively developed updated versions and releases of the operating system. UnixWare is the brand name for the most current releases of UNIX System V.
Liar, liar, pants on fire... my brain reacts. Well, what can they do? If they don't own the copyrights to the Unix code they originally sued AutoZone over, they have to say something or they wouldn't be SCO. If they tell the stone cold truth, they would lose. Of course, it all gets complicated by the appeal. I'm sure we can count on SCO to spin it to the judge as a sure shot for them.

You can see from this document what SCO would like to do to all Linux enterprise end users. I call it a stick up. They certainly seem to have hoped it would be an offer we couldn't refuse. Hopefully, the trustee will approach it more rationally. But I see SCO's character in this document. If they don't own the copyrights, they invent another "offense", contract-based, just so they can sue and sue and sue. The bottom line of this complaint is that SCO still claims there is Unix code SCO owns infringed in Linux. Can you believe they are still clinging to that pipe dream? I can, actually, and I expect to see their lawyers dance to all SCO's usual minuets, including methods and concepts, before this is done, if the trustee allows it to go forward. Which I doubt.

Here's the chart, then, with the two new copyrights highlighted, followed by the English version of the license agreement. You may notice more than I have, of course. In fact I rely on it:

***********************************************

# SCO First Amended Complaint and Jury Demand Defendant AutoZone's Answer To Plaintiff's First Amended Complaint
1 AutoZone uses one or more versions of the Linux operating system that infringe on SCO’s exclusive rights in its propriety UNIX System V operating system technology. AutoZone admits that it uses one or more versions of the Linux operating system. AutoZone denies each and every remaining allegation contained in Paragraph 1.
2 In addition, as SCO confirmed through the limited discovery the Court previously authorized in this action, contrary to AutoZone’s public statements to this Court and others, AutoZone made many thousands of unauthorized copies of materials from SCO’s OpenServer operating system and related products, in migrating from OpenServer to Linux in AutoZone’s headquarters and 3,500 retail stores. AutoZone denies the allegations contained in Paragraph 2.
3 SCO seeks relief under the Copyright Act to compensate SCO for damages it has sustained as result of AutoZone’s unlawful use of Linux and to enjoin AutoZone’s further unlawful use of Linux. SCO also seeks relief under applicable contract law to compensate SCO for damages it has sustained as a result of AutoZone’s breach of the agreements through which it obtained limited licenses to OpenServer and related materials. SCO also seeks relief under the Copyright Act to compensate SCO for damages it has sustained as a result of AutoZone’s unlawful use of OpenServer and related products outside the scope of those limited licenses. AutoZone admits that SCO purports to bring claims under the Copyright Act and contract law but denies that any of SCO’s legal rights have been violated or that SCO is entitled to any relief on its claims. AutoZone denies each and every remaining allegation contained in Paragraph 3.
4 SCO is a Delaware corporation with its principal place of business in Utah County, Utah. AutoZone admits the allegations contained in Paragraph 4.
5 AutoZone is a Nevada corporation with its headquarters in Tennessee. AutoZone admits the allegations contained in Paragraph 5.
6 This Court has subject matter jurisdiction over SCO’s copyright claims pursuant to 28 U.S.C. §§ 1331 and 1338. Based on this jurisdiction, the Court also has supplemental jurisdiction over SCO’s contract claim. AutoZone denies that this Court has jurisdiction over SCO’s claims related to UNIX System V and UnixWare. AutoZone is without knowledge or information sufficient to form a belief as to whether this Court has subject matter jurisdiction over SCO’s claims as alleged in Paragraph 6, and the same is therefore denied.
7 This Court has personal jurisdiction over AutoZone because it is incorporated and conducts substantial business in Nevada. AutoZone admits the allegations contained in Paragraph 7.
8 Venue is properly situated in this District pursuant to 28 U.S.C. §§ 1391 and 1400, and the prior order of this Court. AutoZone admits the allegations contained in Paragraph 8, however, AutoZone denies that this District is the most convenient forum as no relevant witnesses or documents are located in this District.
9 UNIX is a computer software operating system. Operating systems serve as the link between computer hardware and the various software programs (known as applications) that run on a computer. Operating systems allow multiple software programs to run at the same time and generally function as “traffic control” for those programs. OAutoZone admits the allegations contained in Paragraph 9.
10 UNIX is widely used in the business-computing environment of the Fortune 1000 companies and other large corporations (often called the “enterprise computing market”). AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 10, and the same are therefore denied.
11 The UNIX operating system was originally developed by AT&T Bell Laboratories (“AT&T”). Over the years, AT&T and its successors progressively developed updated versions and releases of the operating system. UnixWare is the brand name for the most current releases of UNIX System V. AutoZone admits that the UNIX operating system was developed at least in part by AT&T Bell Laboratories and that AT&T at least in part developed updated versions of the UNIX operating system. AutoZone denies each and every remaining allegation contained in Paragraph 11.
12 In the 1980s, AT&T began to license UNIX System V as a commercial product for use in enterprise applications by large companies and institutions. Pursuant to standard licensing agreements, AT&T granted the world’s leading computer manufacturers the right to use a specific release of the valuable UNIX source code to develop UNIX-derived versions of the operating system, known as UNIX flavors, optimized to run on their respective computers. International Business Machines, Hewlett-Packard, Sun Microsystems, Silicon Graphics, Sequent Computer Systems, and Santa Cruz Operation, Inc. (“Santa Cruz”), among others, became important vendors of UNIX flavors. AutoZone admits that AT&T licensed UNIX to third parties. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 12, and the same are therefore denied.
13 Licensees obtained those rights subject to strict restrictions on the use and disclosure of UNIX source code and intellectual property, including the UNIX flavors themselves. These restrictions protected the rights of AT&T and its successors, including today SCO, in the UNIX technology and business. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 13 and the same are therefore denied.
14 Through a series of corporate acquisitions – from AT&T, to Novell, to Santa Cruz, to SCO – SCO today owns (among other assets related to UNIX) all right, title, and interest in and to:

a. the source code for UNIX, UnixWare, and the UNIX flavor OpenServer,

b. the licensing agreements with the foregoing UNIX vendors,

c. all claims for breach of those agreements,

d. copyrights in and to UNIX and UnixWare, and

e. copyrights in and to OpenServer and related products.

AutoZone admits that Novell acquired certain rights from AT&T related to the UNIX operating system, including certain copyrights. AutoZone denies each and every remaining allegation contained in Paragraph 14.
15 Upon information and belief, SCO owns all copyrights to UNIX, UnixWare, OpenServer, and related products. AutoZone denies the allegations contained in Paragraph 15.
16 On August 10, 2007, the Federal District Court for the District of Utah ruled on summary judgment that SCO has a license and other ownership rights, but does own the copyrights, to certain older versions of UNIX and UnixWare. SCO has appealed this ruling in the United States Court of Appeals for the Tenth Circuit, which heard oral argument on the appeal on May 6, 2009. The appeal was briefed and argued on an expedited basis; SCO does not know when the Tenth Circuit will issue a decision. AutoZone admits that the Federal District Court for the District of Utah ruled on summary judgment on August 10, 2007 in the Novell v. SCO litigation. AutoZone states that the court’s order speaks for itself; however, contrary to SCO’s allegation, the Court ruled that SCO does NOT own rights to UNIX. AutoZone further admits that SCO appealed the district court’s decision to the United States Court of Appeals for the Tenth Circuit and also admits that oral arguments were held on that appeal on May 6, 2009. AutoZone denies each and every remaining allegation contained in Paragraph 16.
17 Linux is a form of “open source” software. The Linux source code is freely available to the public – unlike the source code for proprietary programs such as UNIX and its flavors. The code for the Linux kernel can be freely downloaded from a public website and installed on a computer. Like other open source software, Linux is modified on an ongoing basis, based on voluntary contributions from users around the world. AutoZone admits the allegations contained in Paragraph 17.
18 Starting approximately in early 2000, Linux was wrongfully transformed from an upstart hobbyist’s program into a powerful general enterprise operating system competitive with UNIX and Windows. According to leaders within the Linux-development community, Linux is intended to displace UNIX System V. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 18 and the same are therefore denied.
19 Linux is in material respects a variant or clone of UNIX System V technology. Linux is a derivative of, and substantially similar to, UNIX System V under the Copyright Act. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 19 and the same are therefore denied.
20 Subsequent to the transformation of Linux into a commercially viable operating system, AutoZone started to use, copy, modify, and/or distribute one or more implementations of Linux in its business operations. AutoZone today continues to use, copy, modify, and/or distribute Linux. AutoZone thus has infringed and continues to infringe SCO’s exclusive rights as owner of the copyrights to UNIX System V. AutoZone admits that it has used and copied Linux in certain of its business operations. AutoZone further admits that it continues to use and copy Linux in connection with its business operations. AutoZone denies each and every remaining allegation contained in Paragraph 20.
21 In 1988, Santa Cruz licensed UNIX System V Release 3.2 from AT&T. As a UNIX licensee, Santa Cruz then developed and marketed OpenServer, based on that UNIX release. In 1995, Santa Cruz purchased the base UNIX technology and the UNIX licensing business from Novell, Inc., which had acquired them from AT&T. In 2001, SCO acquired the base UNIX technology and the UNIX licensing business, as well OpenServer and related products, from Santa Cruz. AutoZone denies that Santa Cruz purchased the UNIX technology from Novell, Inc. or that SCO acquired this technology from Santa Cruz. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in Paragraph 21, and the same are therefore denied.
22 By the late 1990s, before Linux was transformed into a commercially viable competitor to UNIX, OpenServer was a market leader in worldwide UNIX sales. Today, OpenServer accounts for the majority of SCO’s revenues. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 22 and the same are therefore denied.
23 On May 14, 1990, Santa Cruz entered into an Authorized Industry Reseller Agreement with AutoZone (the “AIRA”) granting AutoZone a limited license to “LICENSED PRODUCT,” including OpenServer and related products. AutoZone admits that Santa Cruz and AutoZone entered into an Authorized Industry Reseller Agreement on May 14, 1990. AutoZone responds that the language of the AIRA speaks for itself.
24 Under the AIRA, AutoZone obtained the right to use the LICENSED PRODUCT “exactly as shipped . . . by SCO.” (AIRA § 1.) The AIRA also provides that AutoZone “may not modify or change LICENSED PRODUCT in any manner” and “may not make or cause to be made any copy of any part of LICENSED PRODUCT.” (Id. (emphasis added).) In addition, AutoZone agreed to “modify . . . SCO LICENSED PRODUCT . . . only with SCO’s prior permission.” (Id. § 2.1.H.) AutoZone responds that the language of the AIRA speaks for itself, but AutoZone denies the allegations contained in the first sentence of Paragraph 24.
25 On January 24, 2001, Santa Cruz entered into a Corporate Software License Agreement with AutoZone (the “CSLA”). Section 1.0 of the CSLA, entitled “Grant of Right,” provides:
SCO grants Company a non-transferable and non-exclusive license to use the Licensed Products provided to Company under this Agreement and to utilize any SCO Serial Number and Activation Key (“SNAK”) or Certificate of License (“COLA”) made available to Company to install such Licensed Product on Company’s systems worldwide, subject to the terms of this Agreement. Any use of the SNAK and/or COLA shall be in accordance with the terms and conditions set forth herein.
AutoZone admits the allegations contained in Paragraph 25.
26 The standard COLA provides: “This certificate licenses the software product listed below according to the rights outlined in the Software License Agreement included with your SCO product.” AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 26 and the same are therefore denied.
27 Section 3.1 of the CSLA provides:
Company shall have the right to reproduce the Licensed Product as expressly set forth herein. The Licensed Products may not be modified or revised in any way, nor may it be translated or localized in any way without the prior written consent of SCO. All copies of the Licensed Product reproduced by Company shall include the copyright notice of SCO and/or its suppliers and all other proprietary markings.
(Emphasis added.)
AutoZone responds that the language of the CSLA speaks for itself.
28 Section 11.2 of the CSLA requires that AutoZone “not reverse engineer or decompile, translate, create derivative works or modify any of the Licensed Product, except as expressly provided herein.” (Emphasis added.) The CSLA does not provide any such exception. AutoZone responds that the language of the CLSA speaks for itself, but AutoZone denies the allegations contained in the second sentence of Paragraph 28.
29 SCO owns and is the successor-in-interest to all contractual rights arising under and related to the AIRA, CSLA, and COLA. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 29, and the same are therefore denied.
30 AutoZone licensed OpenServer and related products under the AIRA and CSLA, subject to the terms of those agreements. As explained below, AutoZone breached those agreements in migrating or converting its computer systems at its headquarters and 3,500 stores from a UNIX-based operating system to a Linux-based operating system. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in the first sentence of Paragraph 30, and the same are therefore denied. AutoZone denies each and every remaining allegation contained in Paragraph 30.
31 Pursuant to this Court’s August 6, 2004 Order, as amended, SCO conducted limited discovery to determine whether or not it was necessary for SCO to move for a preliminary injunction. Contrary to the statements AutoZone made to this Court at that time and contrary to an Internet posting by AutoZone’s former senior technology advisor, AutoZone admitted to extensive copying of programs containing OpenServer code. After such facts came to light, AutoZone swore that it had voluntarily removed all such programs from its Linux servers and certified that other such programs were recompiled without such code. Accordingly, SCO elected not to file for preliminary injunctive relief. AutoZone admits that on August 6, 2004, this Court allowed the parties to take limited expedited discovery. AutoZone further admits that certain SCO compiled programs were discovered on AutoZone’s servers during discovery. AutoZone admits that once discovered, these programs were deleted and/or replaced with Linux compiled versions of the files. AutoZone denies each and every remaining allegation contained in Paragraph 31.
32 In particular, AutoZone admitted that it created what amounts to tens of thousands of copies of OpenServer files in Common Object File Format (“COFF”) and installed them onto its various Linux servers located in AutoZone’s headquarters and 3,500 stores in the United States and Mexico. With respect to just nine of these COFF files, for example, AutoZone’s senior technical advisor testified:
Q. Okay. So I think you earlier told me that there were – there was a Linux release, and then there was some other kind of release, and somehow, the COFF files got into the Linux release. Is that right?

A. Right.

Q. As you sit here today, do you recall how many machines those nine COFF files were on before they were deleted?

A. I believe they were on all of our store servers.

Q. Okay. So all 3500?

A. Right.

AutoZone admits that its 30(b)(6) representative provided the testimony cited in Paragraph 32, and responds that such testimony speaks for itself. AutoZone denies each and every remaining allegation contained in Paragraph 32.
33 To illustrate, SCO’s limited discovery to date confirms that AutoZone engaged in the following activities, among others, in violation of SCO’s contract rights and copyrights:

a. AutoZone developers copied 1,681 separate COFF files onto at least 387 AutoZone store machines located throughout the United States.

b. AutoZone developers copied 28 COFF files consisting of sort files, help utilities, and other miscellaneous files, onto all its machines in 3,500 AutoZone stores in the United States and Mexico.

c. AutoZone copied two COFF files, Compx and Decompx, onto the machines located in those stores. These files were programs that AutoZone had licensed from a third party which contained proprietary SCO code. AutoZone used these files at least from January 2000 until it deleted them during the Court-ordered discovery process. When AutoZone deleted Compx and Decompx from its Linux servers, the replenishment system used by AutoZone to replace inventory from its warehouses failed on approximately 650 machines.

d. AutoZone’s machine load computer was found to contain a program entitled dexpand.x that was compiled under SCO’s proprietary OpenServer operating system.

e. AutoZone copied over 4,500 programs that were compiled to run on OpenServer onto AutoZone’s “Spirit Server” which was used to store AutoZone’s source code in its headquarters. The vast majority of these programs contain some portion of SCO’s proprietary static libraries. AutoZone has admitted to copying on Spirit at least 1,130 programs compiled to run on OpenServer.

f. In addition, with the aid of a software tool written by SCO’s technical consultant, AutoZone discovered an additional fifteen SCO Extensible Linking Format (“ELF”) and Xenix files which were also compiled to work on SCO proprietary operating systems (earlier versions of OpenServer that were licensed by AutoZone). AutoZone admitted that those files “likely also exist on all 3500 AutoZone store servers.”

g. AutoZone copied approximately 370 programs onto its Linux development machine known as “Wrangler.” The majority of these programs appear to contain some portion of SCO’s proprietary static libraries.

h. AutoZone developers copied numerous SCO files, the precise number of which has not been disclosed in discovery, onto AutoZone’s “Vision” server which was used in part by AutoZone to compare the output of programs that it was porting from OpenServer to Linux, to ensure that the output was identical.

AutoZone denies that it violated SCO’s alleged contract and copyright rights as set forth in Paragraph 33. a. Answering the allegations of Paragraph 33(a), AutoZone admits that in October 2004, upon searching its AutoZone store servers, 1,681 COFF files were found on 387 machines. AutoZone denies each and every remaining allegation contained in Paragraph 33(a) and further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

b. Answering the allegations of Paragraph 33(b), AutoZone admits the allegations in Paragraph 33(b) but denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

c. Answering the allegations of Paragraph 33(c), AutoZone admits that it used Compx and Decompx on certain machines in its stores. Because AutoZone does not have the source code for these third-party programs, it is without knowledge or information as to the truth of the allegation that these programs contained proprietary SCO code and this allegation is therefore denied. AutoZone further admits that it deleted the Compx and Decompx files in October 2004. AutoZone admits that upon deletion, the replenishment system, a program used by AutoZone store servers to order and receive new inventory from distribution centers, failed in 650 of its stores. AutoZone denies each and every remaining allegation contained in Paragraph 33(c) and further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

d. Answering the allegations of Paragraph 33(d), AutoZone admits that its machine load computer had a program on it called dexpand.x that was compiled under OpenServer. AutoZone denies each and every remaining allegation contained in Paragraph 33(d) and further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

e. Answering the allegations of Paragraph 33(e), AutoZone admits that 1,130 SCO compiled programs were loaded onto its Spirit Server. AutoZone denies each and every remaining allegation contained in Paragraph 33(e) and further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

f. Answering the allegations of Paragraph 33(f), AutoZone admits that fifteen SCO Extensible Linking Format and Xenix files were identified on AutoZone’s store load machine. AutoZone further admits that its counsel stated that “these files likely also exist on all 3,500 AutoZone store servers.” AutoZone denies each and every remaining allegation contained in Paragraph 33(f) and further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

g. Answering the allegations of Paragraph 33(g), AutoZone admits that it has a Linux development machine known as “Wrangler.” AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 33(g) and the same are therefore denied. AutoZone further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

h. Answering the allegations of Paragraph 33(h), AutoZone admits that it utilized a machine called Vision to test certain of its programs during its migration to Linux. AutoZone denies each and every remaining allegation contained in Paragraph 33(h). AutoZone further denies SCO’s legal rights have been violated or that SCO is entitled to any relief on its claim.

34 AutoZone conducted its migration to Linux in an ad hoc manner through developers who had worked and were familiar with SCO’s proprietary OpenServer code and related products, with no formal controls in place to protect those materials. AutoZone has admitted that the persons responsible for implementing the migration were not focused on protecting those materials. Those persons did not consult counsel prior to or during the migration process, nor did they review the AIRA or CSLA to determine if the planned migration ran afoul of those licenses. AutoZone admits that certain persons involved in the Linux migration did not directly consult copyright counsel or review licenses when making the transition to Linux, nor were they obligated to do so. AutoZone denies each and every remaining allegation contained in Paragraph 34.
35 AutoZone’s conduct constituted a breach of terms of the AIRA and CSLA. AutoZone denies the allegations contained in Paragraph 35.
36 AutoZone breached the provisions requiring that it “not make or cause to be made any copy of any part of LICENSED PRODUCT.” (AIRA § 1.) AutoZone denies the allegations contained in Paragraph 36.
37 In addition, in taking materials from software products licensed to AutoZone under the AIRA and using them to migrate to Linux, AutoZone breached the provisions requiring it to use those materials “exactly as shipped” and “not modify or change LICENSED PRODUCT in any manner.” (Id.) AutoZone also breached the provisions permitting it to “modify . . . SCO LICENSED PRODUCT . . . only with SCO’s prior permission.” (Id. § 2.1.H.) AutoZone denies the allegations contained in Paragraph 37.
38 Similarly, AutoZone’s conduct in migrating to Linux breached Section 3.1 of the CSLA, which provides that “Licensed Products may not be modified or revised in any way,” and Section 11.2 of the CSLA, which requires that AutoZone not “create derivative works or modify any of the Licensed Product, except as expressly provided herein.” AutoZone denies the allegations contained in Paragraph 38.
39 AutoZone’s breach of its contractual obligations worked damage upon SCO, including by depriving SCO of the licensing fees that AutoZone was required to pay SCO for each copy and installation of OpenServer and related materials. AutoZone denies the allegations contained in Paragraph 39.
40 AutoZone also infringed SCO’s copyrights in the OpenServer and related products licensed through the AIRA and CSLA, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products in migrating to Linux. AutoZone denies the allegations contained in Paragraph 40
41 Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein. 3 AutoZone repeats and realleges its answers to Paragraph 1 -40 as though fully set forth herein.
42 Upon information and belief, SCO is the sole and exclusive owner of the copyrights to UNIX, UnixWare, and OpenServer (including related products), including source code, object code, programming tools, documentation, and derivative works thereof (the “Copyrighted Materials”). SCO is the sole, exclusive, and undisputed owner of certain copyrights to the Copyrighted Materials.. AutoZone denies the allegations contained in Paragraph 42.
43 SCO and its predecessors-in-interest obtained, and SCO today owns, numerous copyright registrations in Copyrighted Materials, including without limitation registrations for the following reference materials:
TITLE REGISTRATION NO.
UNIX SYSTEM V RELEASE 4 Integrated
Software Development Guide
TX 2 931-646
UNIX SYSTEM V RELEASE 4 Reference
Manual For Intel Processor Commands m-z
TX 3 221-656
UNIX SYSTEM V RELEASE 4 Reference
Manual for Intel Processors Commands a-1
TX 3 227-639
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Intel Processors
TX 3 232-578
UNIX SYSTEM V RELEASE 4 Programmer’s
Guide: Streams for Intel Processors
TX 3 218-286
UNIX SYSTEM V RELEASE 4 Device Driver
Interface/Driver Kernel Interface Reference
Manual for Motorola Processors
TX 220-500
UNIX SYSTEM V RELEASE 4 Reference
Manual for Motorola Processors Commands a-l
TX 3 220-331
UNIX SYSTEM V RELEASE 4
PROGRAMMER’S GUIDE
TX 2 120-502
UNIX SYSTEM V/386 RELEASE 4 Transport
Application Interface Guide
TX 2 881-542
UNIX SYSTEM V/386 RELEASE 4 Device
Interface/Driver Kernel Interface (DDI/DKI)
Reference Manual
TX 2 883-235
UNIX SYSTEM V/386 RELEASE 4
Programmers Guide: SCSI Driver Interface
TX 2 902-863
UNIX SYSTEM V/386 RELEASE 4 System
Administrator's Reference Manual
TX 2 881-543
UNIX SYSTEM V/386 RELEASE 4
Programmers Reference Manual
TX 2 853-760
UNIX SYSTEM V/386 RELEASE 4 User's
Reference Manual
TX 2 890-471
UNIX SYSTEM V/386 RELEASE 4
User's Reference Manual
TX 2 820-791
UNIX SYSTEM V RELEASE 4 Device Driver Interface/Driver
Kernel Interface (DDI/DKI) Reference Manual
TX 3 820-792
UNIX SYSTEM V RELEASE 4 Programmer's
Guide: Streams
TX 2 833-114
UNIX SYSTEM V RELEASE 4 Programmer's
Reference Manual
TX 2 832-009
UNIX SYSTEM V RELEASE 4 System
Administrator’s Reference Manual
TX 2 830-989.
UNIX SYSTEM V/386 Programmer's Guide
Vol. II
TX 2 454-884
UNIX SYSTEM V/386 RELEASE 3.2
Programmers Reference Manual
TX 2 494-658
UNIX SYSTEM V/386 Programmer's
Reference Manual
TX 2 373-759
UNIX SYSTEM V/386 System
Administrator's Reference Manual
TX 2 371-952
UNIX SYSTEM V/386 Streams Programmer's
Guide
TX 2 367-657
UNIX SYSTEM V/386 Streams Primer TX 2 366-532
UNIX SYSTEM V RELEASE 3.2 System
Administrator's Reference Manual
TX 2 611-860
UNIX SYSTEM V. RELEASE 3.2
Programmer's Reference Manual
TX 2 605-292
UNIX SYSTEM V Documentor's Workbench
Reference Manual
TX 2 986-119
UNIX SYSTEM V RELEASE 4 User's
Reference Manual/System Administrator's
Reference Manual for Motorola Processors
Commands m-z
TX 3 218-267
UNIX SYSTEM V RELEASE 4 System Files
and Devices Reference Manual for Motorola
Processors
TX 3 221-654
6 AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 43 and the same are therefore denied.
44 SCO also obtained and owns registrations for other Copyrighted Materials, including without limitation registrations for the following software code:

UNIX system V: release 3.0 TX 5-750-270
UNIX system V: release 3.1 TX 5-750-269
UNIX system V: release 3.2 TX 5-750-271
UNIX system V: release 3.2/386 TX 5-750-268
UNIX system V: release 4.0 TX 5-776-217
UNIX System V: release 4.1 TX 5-762-234
UNIX system V: release 4.1ES TX 5-705-356
UNIX System V: release 4.2 TX 5-762-235
UNIX System V: release 4.2MP TX 5-972-097
UnixWare 7.1.3 TX 5-787-679
SCO OpenServer: release 5.0.5 TX-6-008-305

AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 44 and the same are therefore denied.
45 Under 17 U.S.C. § 410 (c), the Certificates of Copyright Registrations identified above constitute prima facie evidence of the validity of the copyrights and of the facts stated in the Certificates. SCO’s registered copyrights in the Copyrighted Materials, and the facts stated in the corresponding Certificates, are entitled to such statutory presumptions. AutoZone denies the allegations contained in Paragraph 45
46 SCO and its predecessors-in-interest created the Copyrighted Materials as original works of authorship, and, as such, the Copyrighted Materials constitute copyrightable subject matter under the copyright laws of the United States. The Copyrighted Materials automatically became subject to copyright protection under 17 U.S.C. § 102(a) when they were fixed in a tangible medium of expression. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 46 and the same are therefore denied.
47 Copyright protection under 17 U.S.C. §§ 102 and 103 extends to derivative works. Derivative works are defined in 17 U.S.C. § 101 to include works based on the original work and any other form in which the original work may be recast, transformed, modified, or adapted. 13 BER S, Suite 1da 891101 AutoZone states that Paragraph 47 contains purported statements of law, and, as such, neither an admission or denial is required as to these statements.
48 The Copyrighted Materials include protected expression of code, structure, sequence, and/or organization in many categories of UNIX System V functionality, including but not limited to the following: System V static shared libraries; System V dynamic shared libraries; System V inter-process communication mechanisms including semaphores, message queues, and shared memory; enhanced reliable signal processing; System V file system switch interface; virtual file system capabilities; process scheduling classes, including real time support; asynchronous input/output; file system quotas; support for Lightweight Processes (kernel threads); user level threads; and loadable kernel modules. AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 48 and the same are therefore denied.
49 The Copyrighted Materials, in whole or in part, have been unlawfully copied or otherwise improperly used to create a derivative work of UNIX System V, including one or more Linux implementations, including without limitation Linux versions 2.4 and 2.6. As a result, such versions of Linux are unauthorized derivative works of UNIX System V under the Copyright Act. AutoZone denies the allegations contained in Paragraph 49.
50 AutoZone has infringed and will continue to infringe SCO’s copyrights to the Copyrighted Materials by using, copying, modifying, and/or distributing parts of the Copyrighted Materials, or derivative works based on the Copyrighted Materials, in connection with AutoZone’s implementations of one or more versions of the Linux operating system, inconsistent with SCO’s exclusive rights under the Copyright Act. AutoZone admits that it implemented one or more versions of the Linux operating system. AutoZone denies each and every remaining allegation contained in Paragraph 50.
51 AutoZone has infringed SCO’s copyrights in OpenServer 5.0.5 and other Copyrighted Materials, by using, copying, reproducing, adapting, modifying, and/or distributing OpenServer and related products, in AutoZone’s migration from OpenServer to Linux. AutoZone denies the allegations contained in Paragraph 51.
52 In addition, under the specific terms and conditions set forth in the AIRA and CSLA, SCO granted AutoZone a non-exclusive license to the technologies covered by SCO’s copyrights in OpenServer and related products. AutoZone expressly covenanted not to use those technologies except as provided in those agreements. AutoZone infringed SCO’s copyrights in OpenServer 5.0.5 and related products, by using, copying, reproducing, adapting, modifying, and/or distributing those materials outside the scope of the limited licenses granted in the AIRA and CSLA. AutoZone denies the allegations contained in Paragraph 52.
53 AutoZone does not own any copyright to the Copyrighted Materials, nor does it have permission or proper license from SCO to use any part of the Copyrighted Materials as part of a Linux implementation. AutoZone admits that it does not own any copyright to the Copyrighted Materials. AutoZone is uncertain as to what the phrase “as part of a Linux implementation” means and as such AutoZone is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 53 and the same are therefore denied. AutoZone denies each and every remaining allegation contained in Paragraph 53.
54 Upon information and belief, AutoZone willfully engaged in its infringing conduct, with knowledge of SCO’s copyrights in the Copyrighted Materials, and AutoZone continues to engage in such conduct in the same manner. AutoZone denies the allegations contained in Paragraph 54.
55 As a result of AutoZone’s infringing acts as described above, SCO has been damaged and is entitled to damages, including actual damages pursuant to 17 U.S.C. § 504(a); statutory damages, pursuant to 17 U.S.C. § 504(b); and enhanced damages, costs, and attorney’s fees pursuant to 17 U.S.C. § 505. AutoZone denies the allegations contained in Paragraph 55.
56 In addition, SCO has no adequate remedy at law. AutoZone’s conduct has caused, and if not enjoined, will continue to cause, irreparable harm to SCO. As a result, pursuant to 17 U.S.C. § 502, SCO is also entitled to relief enjoining AutoZone’s further use, copying, modification, and distribution of Copyrighted Materials or derivative works of Copyrighted Materials. AutoZone denies the allegations contained in Paragraph 56.
57 Plaintiff repeats and re-asserts all allegations set forth in the foregoing paragraphs of this First Amended Complaint as though fully set forth herein. AutoZone repeats and realleges its answers to Paragraph 1-56 as though fully set forth herein.
58 AutoZone materially breached its contractual obligations to SCO, including Section 1 of the AIRA, by making many thousands of unauthorized copies of materials licensed to AutoZone under that contract. AutoZone denies the allegations contained in Paragraph 58.
59 AutoZone materially breached its contractual obligations to SCO, including Sections 1 and 2.1.H of the AIRA and Sections 3.1 and 11.2 of the CSLA, by taking materials from the operating systems it licensed under those agreements and using those materials in its migration from OpenServer to Linux. AutoZone denies the allegations contained in Paragraph 59.
60 AutoZone’s breaches of the AIRA and CSLA have caused SCO damage in an amount to be proved at trial. Those breaches have also caused SCO special damages, including without limitation the costs of prosecuting this action. AutoZone denies the allegations contained in Paragraph 60.
Except as expressly admitted, AutoZone denies each and every allegation contained in SCO’s First Amended Complaint.
- SCO PRAYER FOR RELIEF

WHEREFORE, having fully set forth its complaint, plaintiff prays for relief from this Court as follows:

1. Injunctive relief pursuant to 17 U.S.C. § 502 against AutoZone’s further unlawful use of any part of the Copyrighted Materials and derivatives works thereof;

2. SCO’s actual damages as a result of AutoZone’s infringement and, to the extent applicable and elected by SCO prior to trial pursuant to 17 U.S.C. § 504, SCO’s statutory damages and enhanced damages;

3. Attorney’s fees and costs pursuant to 17 U.S.C. § 505;

4. SCO’s actual damages and special damages as a result of AutoZone’s contractual breaches; and

5. Pre- and post-judgment interest, and all other legal and equitable relief deemed just and proper by this Court.

AUTOZONE AFFIRMATIVE DEFENSES

FIRST DEFENSE
SCO has failed to state a claim upon which relief can be granted.

SECOND DEFENSE
SCO’s claims are barred, in whole or in part, by the doctrine of laches.

THIRD DEFENSE
SCO’s claims are barred, in whole or in part, by the doctrine of collateral estoppel.

FOURTH DEFENSE
SCO’s claims are barred because one or more of the copyright registrations upon which it relies are invalid.

FIFTH DEFENSE
AutoZone’s alleged use of the Copyrighted Material is lawful use based on agreements and licenses with third-parties.

Software License Agreement

Software-Lizenzvertrag

Contrat de Licence de Logiciel

Contrato de Licencia de Software

Contratto di Licenza Software

Contrato de Licenciamento de Software

THE SANTA CRUZ OPERATION
SOFTWARE LICENSE AGREEMENT

CAREFULLY READ ALL TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO OPENING THE SOFTWARE MEDIA PACKAGE. BY OPENING THE MEDIA PACKAGE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROMPTLY RETURN THE UNOPENED MEDIA PACKAGE AND THE ACCOMPANYING ITEMS (including written materials and binders or other containers) TO THE PLACE YOU OBTAINED THEM FOR A FULL REFUND.

REGISTRATION

Certain SCO Products will exhibit modified functioning if they are not registered as required.

SCO OPTIONAL MAINTENANCE

SCO may, at its discretion, notify you of Updates that SCO may periodically make generally available for the Product, but only if you have completed and returned the Registration Card. At your request, SCO, directly or, at SCO's discretion, through its local authorized representative, will provide you with such Updates, subject to the additional charges that SCO or its authorized representative may establish. Such an Update may be used only on the designated computer as described under the Grant Provision of this Agreement. This Provision will not be interpreted to require SCO to (i) develop and release Updates or (ii) customize the Updates to satisfy your particular requirements. The Updates will not include any new products that SCO decides to make generally available as a separately priced upgrade or option.

DEFINITIONS

"Agreement" is the contract between the Software User ("You") and The Santa Cruz Operation, Inc. ("SCO"), relating to the product acquired by You in complete packaged form; in any other case, additional or varied terms will apply. The Agreement comprises (i) this document, (ii) registration documents, (iii) any additional terms contained in the Documentation as referred to herein, and (iv) any amendments agreed by both You and SCO in writing. Such additional terms shall pertain, without limitation, to the following: term, fees and payment, number of permitted Users, number of permitted CPU's, registration requirements, restriction on runtime environment and transfer of Your rights.

"Product" is (i) the Software contained in the media packet, (ii) the published user manuals and documentation, including any registration or serialization document that is supplied with the Software as part of a standard SCO packaged product (the "Documentation"), (iii) the updates or revisions of the Software or Documentation that You may receive (the "Updates") and (iv) any copy of the Software, Documentation or Updates.

"Software" is the machine-readable (object) code portion of the Product and any human readable code contained on the media.

"User" is a person accessing the Software via a local or remote interactive device, such as a terminal or workstation, except where such use is exclusive to routing or gateway functions of the Software.

GRANT

SCO grants You (the Software User) and You accept from SCO, the following non-exclusive rights. You are not granted any other right in the Software. All proprietary rights in or related to the Software are and will remain the exclusive property of SCO or its licensors. You further acknowledge that the Software contains confidential information owned by SCO or its licensors and agree to take reasonable steps to protect the confidentiality of such information.

You may load, copy or transmit the Software in whole or in part, only as necessary to use the Software on a single personal computer or workstation, unless the Software is designated on the registration document as being for use on a multiuser or multiple system configuration, in which case You must take reasonable means to assure that the number of Users does not exceed the permitted number of Users.

In addition, You may make back-up or archival copies of the Software; you may not copy the printed Documentation.

All trademarks, service marks, patents, copyright and other proprietary notices must be reproduced when making copies in whole or in part.

You may not reverse compile the Software for any purpose. If You wish to exercise any rights under Article 6.1 b of the EC Directive on the Legal Protection of Software, (Directive 91/250), You shall, in the first instance, write to SCO's Legal Department. You may not copy or adapt the Software for the purpose of correcting errors in it.

If your software includes font rendering software from Adobe Systems, Inc., your use of that software is restricted to a single processing unit connected to a display of less than 150 dots per inch and, optionally, connected to a printer with a resolution of 700 dots per inch or less.

LIMITED WARRANTY

SCO warrants that upon your receipt of the Software and for a period of 90 calendar days thereafter, the media on which the Software is embedded will be free of defects in material and workmanship under normal use. SCO does not warrant that (i) the Software and any related Updates will be free of defects, (ii) the Software will satisfy all of your requirements or (iii) the use of the Software will be uninterrupted or error-free.

In case of breach of warranty or any other duty related to the quality of the Software, you must return at your expense and no later than 10 days after the expiration of the warranty period,the Software to SCO or its local authorized representative, together with a copy of your dated Proof of Purchase. SCO or its representative will replace any defective media, or if not practicable, may terminate this Agreement and refund to you the amount paid for the Product. You acknowledge that this Paragraph sets forth your exclusive remedy and SCO's exclusive liability for any breach of warranty or other duty related to the quality of the Product.

LIMITATION OF LIABILITY

EXCEPT FOR THE SCO WARRANTY SET OUT ABOVE, OR OTHERWISE EXPRESSLY PROVIDED IN A SEPARATE AGREEMENT WITH SCO OR YOUR SUPPLIER, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY SCO, ITS LICENSORS OR REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.

SOME JURISDICTIONS 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 JURISDICTION TO JURISDICTION.

UNDER NO CIRCUMSTANCES WILL SCO OR ITS LICENSORS OR 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 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 OR ITS LICENSORS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THE SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.

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.

EXPORT RESTRICTIONS

You acknowledge that the Product and the media are subject to export controls under the U.S. Export Administration Regulations and the export regulations of other countries. You may not export or re-export, directly or indirectly, the Product, the media, or any related technical information or materials unless you have obtained an appropriate authorization from the U.S. Commerce Department and any other relevant government authority.

U.S. GOVERNMENT RESTRICTED RIGHTS

This Product is commercial computer software. If you are a U.S. Government End-User, this license is granted subject to the U.S. Government End-User provisions set forth in the Documentation; and the Product together with its related documentation is subject to the restrictions of U.S.

Government use, duplication or disclosure as set forth in subparagraph (c) (1) (ii) of DFARS 252.227-7013 or subparagraph (g)(3)(i) of FAR 52.227-14, Alt. III, as applicable. Contractor/Manufacturer is The Santa Cruz Operation, Inc.

TERM AND TERMINATION

This license shall remain in effect until terminated as set forth herein. You 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 you or any of your employees or consultants breach any term or condition hereof.

Upon the termination of this Agreement for any reason, all rights granted to you hereunder will cease, and you must promptly (i) purge the Software and any related Updates from all your computer systems, storage media and other files, (ii) destroy the Products and all copies thereof and (iii) deliver to SCO an affidavit which certifies that you have complied with these termination obligations.

ASSIGNMENT

Subject to Your compliance with the Export Restrictions Provision, you may assign this Agreement and permanently transfer the Products to a third party, but only if you promptly send SCO an affidavit signed by You and Your assignee that (i) sets forth your assignee's name and address, (ii) identifies the Product being assigned (including name, release number and serial number) (iii) identifies the manufacturer and serial number of the computer system on which Your assignee will load and use the Software and any related Updates, (iv) acknowledges that Your assignee will comply with the terms and conditions of this Agreement and (v) certifies that You have fulfilled item (i) of the Termination Section and have not retained any Products or copies thereof. Except as provided above, you may not assign, sublicense, rent, lend, lease, pledge or otherwise transfer or encumber the Products, this Agreement or your rights or obligations hereunder without SCO's prior approval.

MISCELLANEOUS

All notices or approvals required or permitted under this Agreement must be given in writing. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by SCO. This Agreement will bind your successors-in-interest. This Agreement is governed by the laws of the State of California, U.S.A. If any provision of this Agreement is held to be unenforceable, in whole or part, such holding will not affect the validity of the other provisions of this Agreement. In the event of any inconsistency between this Agreement and any other related agreement between SCO and You, the terms of this Agreement will prevail.


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