@Tigger

Quote:

There is no evidence that this didnt happen in October except for Everts comment, if they had Olaf sign a statement that it happened in December that might rectify the situation somewhat, but its still fairly hard to understand why a contract was written with October on it in a deal with Olaf and Hyperion, given Hyperion said they had no idea they were going to get the OS sources from Olaf until after they signed the November contract. -Tig

for information

The os 4 agreement also has the date _ October 2001 but October was changed by hand to November. no initialing of the change by the three Parties.
This was argued in another thread.

Last edited by Spectre660 on 07-Jun-2007 at 07:18 PM.
Last edited by Spectre660 on 07-Jun-2007 at 07:17 PM.

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@Tigger

Quote:

Tigger wrote: Quote: fairlanefastback wrote: @Tigger Evert's declaration states clearly that October was a misdate on the document and that it was in December 2001 actually. I'm pretty sure Evert's bending the truth there. You ever actually write a contract with an October date in December? We understand jumping from October 28th to November 3rd (and we have a data change on the contract) as they negotiated the contract and all got together is pretty simple to understand, but saying we accidentally wrote a two month old month on a contract with Olaf that makes us buying the OS after instead of before be finished the AI negotiations is more then a little fishy, the judge is liable to think that as well. Quote: You are careful to say "according to the documents they provided". But there goes that attempt at swaying those who don't have the time to read all thats there to see the big picture again. There is no evidence that this didnt happen in October except for Everts comment, if they had Olaf sign a statement that it happened in December that might rectify the situation somewhat, but its still fairly hard to understand why a contract was written with October on it in a deal with Olaf and Hyperion, given Hyperion said they had no idea they were going to get the OS sources from Olaf until after they signed the November contract. -Tig

If this is part of your theory, that Evert is lying in his declaration, why leave out that Hyperion say that agreement is from December 2001? Your earlier post sounds more convincing to those not reading all the docs to leave that out at the time, though I am glad you are addressing this important point with a theory at this juncture at least.

In regard to this theory though I would submit the following.

Amiga and Hyperion enter into agreement for OS 4 development in November 2001. Amiga promises 3.1, 3.5, and 3.9 source code as part of the deal, no charge to use it for development. (Turns out Amiga can produce none of this after the fact sadly.)

Now given that why would you:

Spend money on Olaf in October ahead of your agreement with Amiga when you don't have a signed contract?

Also why would you seek out the 3.1 source in October when you don't yet have the right to make OS 4, and you expect Amiga will give you the sources for free when you hopefully will have a signed contract with them soon?

The surrounding circumstances seem to support Evert's assertion that once Amiga admitted they had none of the sources that Hyperion then at a date after the agreement to work on Amiga OS 4 existed, for which they sate it was in December, worked out getting at least 3.1 sources from Olaf.

Spending money ahead of time before you secured rights to do so and when it was supposed to be a freebie to still spend money ahead of time makes no sense.

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@jingof

Does anybody know if OS3.9 was all assembler?
I'm guessing that not all parts of OS3.9 were actually compilable when HP went to retrieve it from inventory and so rather than look silly played it as a CHIP of Spite. & Rage.

I read that Hyperion wanted to start from a clean base of C/C++ HAL and new design on many fronts so having the code would have served very little in any case.

Both sides should have done their book keeping, EFT was invented for this very sloppy reason. Both sides deserve money and should communicate better from now on, and constantly amend contracts when circumstances change.

Pay Both and Get Amiga with OS4 with Hardware.... NOW! Final Judgment! Hehee

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@Kronos

Quote:

Kronos wrote: Hyperion KNEW that H&P wouldn't give out sources for 3.5/9 months before they signed that contract. Hyperion DID get the 3.1 sources, wether they made a detour through Barthles hands or not doesn't matter. Everybody knew (or atleast should've known) that the whole Escena-project was dead by summer 2001. The only reason that I can think of is that Hyperion thought AInc would soon go under and that it therefore didn't matter what details were in the contract.

As has been said in support of the AInc case, it is not "what everyone knew" , but what is written in the contract that matters, and provision of the 3.5 & 3.9 source code by AInc is written in the contract.

_________________
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A1XEG3-800 [IBM 750FX PowerPC], running OS4.1FE, using ac97 onboard sound.

"There are 10 types of people in the world: those who understand binary, and those who don't."

The US Courts systems rarely do the "obvious".. So we'll see how everything turns out..

@Swoop

I don't know that he ever had demonstrations with an A1 running OS4.

If I recall correctly he had PP presentations mostly and was very happy about the reactions to showing off an Amiga OS runing on 7.1 mhz computer doing all kinds of semi modern day applications including PP'like stuff and then allude to what was possible on modern hardware.

If Eyetech were only interested in selling linux machines, there are better ways to do that. This was something that had to be marketable as a desktop as well and it was the OS he was trying to sell on the machine.

But all this is pretty much irrelevant. Hyperion was part of the troika that laid out the plans, which included ppc hardware coupled to the software. You have to admit that for several years there was no software when there was hardware and this just might have been the downfall for Alan.

If Hyperion based it's future on an uncertain hardware platform you can't blame anyone else for not being able to deliver. Many here have criticised the choice of ppc. If you're gong to make an issue of it then you're proving them right.

In any case if this was considered a wrong decision then we can't say that Hyperion should be given a chance to make good on their investment because we feel sorry for them.

If the contract says $25000, and it certainly looks that way, then thats what it costs. And if the contract says "buyback", and it very much does look that way as well (as long as the english language is interprated as it is written) then it will be regarded as a buyback.

To make interpretations from the amount as to the meaning is a bit farfetched but I guess stranger things have happened through time.

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Quote:

fairlanefastback wrote: Also why would you seek out the 3.1 source in October when you don't yet have the right to make OS 4, and you expect Amiga will give you the sources for free when you hopefully will have a signed contract with them soon?

I'm going to withdraw the comment about Evert, given the email between Olaf, Fleecy and Ben (Exhibit 19) it doesnt appear possible for them to have signed a contract with Olaf with an October date.

Quote:

The surrounding circumstances seem to support Evert's assertion that once Amiga admitted they had none of the sources that Hyperion then at a date after the agreement to work on Amiga OS 4 existed, for which they sate it was in December, worked out getting at least 3.1 sources from Olaf.

Actually Amiga had the sources, the issue is that Olafs versions were better because he had cleaned them up. I personally know of at least 2 people who gave Fleecy entire contents of the OS source, so AI not having the source as some seem to claim is more then a little silly, its just Olafs source would save alot of time. But again, guys this entire didnt supply the code story isnt a real issue, once Hyperion sold the OS on April 23rd, without attaching costs associated with this, there are no good cost issues they can raise unless they have a contract with AI that says they will cover these costs. I dont think they have such a contract, otherwise we would have already seen it.
-Tig

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@Swoop

Quote:

Swoop wrote: @Kronos As has been said in support of the AInc case, it is not "what everyone knew" , but what is written in the contract that matters, and provision of the 3.5 & 3.9 source code by AInc is written in the contract.

Yeah but the time to complain and get compensated for that was BEFORE or AS PART OF the sale of the OS in April of 2003. Once they sold it, saying oh, wait it costs more then we put on the bill of sale doesnt really work that well.
-Tig

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@Swoop

Quote:

As has been said in support of the AInc case, it is not "what everyone knew" , but what is written in the contract that matters, and provision of the 3.5 & 3.9 source code by AInc is written in the contract.

Let's say that Amiga Inc. didn't supply the 3.5/3.9 source codes as per contract (I am taking no position here), would that automatically legally constitute a breach of contract?

If so then the question arises then why did Hyperion continue with developement of OS4 based on 3.1 source which they really shouldn't have access to except according to the contract for development of said OS?

At the very best they may ask for monetary reimbursement for the extra work to replace the relevant parts from 3.5/3.9.

_________________
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@Tigger

Quote:

Actually Amiga had the sources, the issue is that Olafs versions were better because he had cleaned them up. I personally know of at least 2 people who gave Fleecy entire contents of the OS source, so AI not having the source as some seem to claim is more then a little silly, its just Olafs source would save alot of time. But again, guys this entire didnt supply the code story isnt a real issue, once Hyperion sold the OS on April 23rd, without attaching costs associated with this, there are no good cost issues they can raise unless they have a contract with AI that says they will cover these costs. I dont think they have such a contract, otherwise we would have already seen it.

I'd like to be very clear on this. Do you claim Amiga had the 3.5 and 3.9 sources, as well as the 3.1 source code? Or do you just claim this for 3.1?

Now putting that aside for a moment, what you personally know is meaningless to the case (though its certainly an interesting thing to discuss, no doubt). Unless of course you and Amiga arrange for you to give a declaration for the court.

As for it being "more then a little silly" for people to people to claim that Amiga did not have the source.

#1 Hyperion claims Amiga did not provide it, when they were supposed to contractually, thats what matters here. They have no way to know if Amiga had it but just did not tell them.

#2 Hyperion is talking about 3.9, 3.5, and 3.1 as what they needed and the definition of the "source code" includes all those versions.

From Evert's declaration:

Quote:

Contrary to what Amiga claims, in order for Hyperion to develop OS 4.0, Amiga was to provide Hyperion not only with the source-code of Amiga OS 3.1 but also of Amiga OS 3.5 and Amiga OS 3.9.

Last edited by fairlanefastback on 07-Jun-2007 at 11:57 PM.

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@Steff

Quote:

to showing off an Amiga OS runing on 7.1 mhz computer

7.1 mhz He was using an A500 ?


... Oh wait, silly me : every A1200 left was sold by Petro

_________________
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Now dreaming AOS 4.2...
Thank you to all devs involved for this great job !

@Tigger

Quote:

Tigger wrote: @Swoop Quote: Swoop wrote: @Kronos As has been said in support of the AInc case, it is not "what everyone knew" , but what is written in the contract that matters, and provision of the 3.5 & 3.9 source code by AInc is written in the contract. Yeah but the time to complain and get compensated for that was BEFORE or AS PART OF the sale of the OS in April of 2003. Once they sold it, saying oh, wait it costs more then we put on the bill of sale doesnt really work that well. -Tig

Since Hyperion flatly denies that there is any type of buyback option or "sale of the OS" at any time to Amiga (let alone in April 2003) then your logic simply does not apply about them needing to complain about something in relation to that date.

Last edited by fairlanefastback on 08-Jun-2007 at 12:05 AM.

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@fairlanefastback


When did "Amiga Inc" payments to Hyperion reach 30,000.00 ?
equals 25,000 for Buyback plus 5,000 re outstanding AmIgaDE 3d work

Last edited by Spectre660 on 08-Jun-2007 at 12:13 AM.

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@Tigger

for if we get as far as the trial by Jury :

http://www.answers.com/topic/justice

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@Spectre660

Quote:

Spectre660 wrote: @fairlanefastback When did "Amiga Inc" payments to Hyperion reach 30,000.00 ? equals 25,000 for Buyback plus 5,000 re outstanding AmIgaDE 3d work

Its important to note Hyperion also had an issue in regard to legal fees that they felt Amiga owed them so you might want to take that into account.

Anyway.

We have a $20,000 payment from Itec around 4/2003.
A $2250 payment from Tachyon (yet another Pentti Kouri company) around the same time.

Hyperion points out their reciept (which was issued some time later and is not dated) accidently says $22,500 instead of $22,250.

We have a *request* sheet for a $2500 wire transfer from Bill McEwen personally. Bill says in his declaration the $25,000 total was paid by sometime in May, 2003. Hyperion seems to dispute recieving this wire transfer. Its not in the reciept, and in court according to Atheist or the IRC (Ben?) (can't remember which) Hyperion's lawyer points out there is no proof it went through and was recieved by Hyperion.

And even if it was sent, Amiga is $250 short of $25,000 according to Hyperion. And even then Hyperion says its a buy-in, not a buy-out. Thats a seperate issue, but worth noting.

Hyperion does not specifiy other dollar amounts owed. But Amiga claims two other payments to Hyperion. Of which I don't believe are disputed by Hyperion.

I haven't yet found a date for the $7200 payment and came first of these two. Which would bring you over the $30,000 mark.

But the $8850 payment was made November 2006. Its also important to note that the buy-in/buy-out $25,000 could only be applied when any other monies had been paid off first. The problem for us is we don't know when certain things became billable along the way over the years.

I don't think we have a clear answer for your question.

Last edited by fairlanefastback on 08-Jun-2007 at 12:39 AM.

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@fairlanefastback

Quote:

Since Hyperion flatly denies that there is any type of buyback option or "sale of the OS" at any time to Amiga (let alone in April 2003) then your logic simply does not apply about them needing to complain about something in relation to that date.

How about you actually post what you think instead of what Hyperion says? In your opinion what does Exhibit F which states:

"Hyperion confirms that for the receipt of 25,000 USD, Hyperion shall transfer the ownership of the Object Code, Source Code and intellectual property of OS 4.0 to Itec in accordance with the provisions of the November 1, 2001 agreement between Amiga, Hyperion and Eyetech and to the extent it can do under existing agreements with third party developers whose work shall be integrated in OS 4.0."

Transfer Ownership is pretty much selling in my book, what about you?
-Tig

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@Kluz, Hans, Scabit, fairlanefastback

This is to thank you all

Klutz: Quote:

This is how I will resolved the situation:

Blessed are the peacemakers. Justice and law are different, justice being about right human relations, law being about restraining selfish disregard for the wellbeing of others, as I see it anyway. You may be interested in a formula I came across long ago. I privately think of it as the law of the peacemakers (mediators).
"The three are one, and not the two alone".

So many conflicts and controversies persist because of the inability of people to perceive a reconciling position. Instead they merely take sides. I was once enchanted to receive three written accounts of a yacht capsize, one from the lone sailor, one from an observer on a nearby beach and one from an observer on a hill across the channel. Their accounts were mutually contradictory yet each was certain his observations were not mistaken.. They were far too mature to call each other liers so dispatched the accounts to me to resolve. Fortunately I had experience of the place, conditions and a certain knowledge of physics that allowed me to reconcile all the observations and produce an explanation of the capsize. It was also nice to have a yachtie report that he had gone out to test my solution and found it was so. So it is naive and damaging to call others liars. Usually the person making that charge mistakes his own position for fact against which others are measured though I must admit that whenever an event I reported on involved insurance I found the most interested party tended to lie or at least hedge the truth.

To Hans and Scabit, I sat down to summarize this mess and found you had saved me most of the work, Thankyou, you definitely helped.

To fairlanefastback, whoever you are:) I am impressed by the detached way you succeed in managing these debates. There are few people I've known with whom I have been able to enter into a discussion or an investigation simply following without prejudice wherever it may lead. Most people drop out as soon as they find their own preferences being questioned or their own fears brought to the fore. If asked for advice it is not disinterested. The peacemakers are those who can clarify issues requiring decision yet leave the parties to make their own decisions on the understanding achieved. I suspect I would always find a discussion with you enjoyable and fruitful.

Noel

Last edited by NoelFuller on 08-Jun-2007 at 01:04 AM.

@Tigger

Lets work towards a complete picture again. You are refering to a document from 2003 when Itec was going to take over the contract. The most important part of the section you quote from that document is that it is to be...

Quote:

in accordance with the provisions of the November 1, 2001 agreement between Amiga, Hyperion and Eyetech

So its the November 2001 agreement we need to look at.

Quote:

2.06 Ownership. Amiga shall retain ownership of the Software. Other than the rights and licenses granted to the AmigaOne Partners and Hyperion and Eytech individually, nothing in this Agreement shall be construed as limiting Amiga's right and title in the Software

The "other than" is important. It acknowledges that Hyperion has a right and license in regard to the software.

Quote:

At any time prior to the completion of the OS 4.0 and no later than six (6) months thereafter and provided Amiga makes the payment pursuant to article 3.01 hereof, Hyperion shall transfer all Source Code, interest and title in OS 4.0 to Amiga to the extent it can do so under the agreements concluded with third party contractors.

It says nothing of Hyperions licenses and rights expiring or being rescinded. The word "interest" could be up for a measure of debate. But I think the clause as a whole shows that they were to retain their license.

It specifically says not all source code may be transfered to Amiga depending on agreements with third parties. So Amiga is not guaranteed to be able to obtain all that is required to take the OS further in-house from Hyperion directly.

Quote:

Hyperion shall use best efforts to secure the widest possible rights from third part contrators. Amiga hereby acknowledges tht some third parties may only grant an Object Code license or may otherwise restrict rights granted to Hyperion.

Given the limited pool of possible programmers and not being provided all sources Amiga owed them I believe Hyperion likely used best efforts.

No where does it say what parts of the OS are effected by this section. The kernal seems as likely to fall under this possible circumstance as anything else.


Now to section 3.01 as it is referenced in 2.06.

Quote:

Amiga may, at any time but no later than six (6) months after the completion of OS 4.0, elect to pay Hyperion Twenty Five Thousand USD (25,000 USD) in order to acquire the Object Code, Source Code, and intellectual property of OS 4.0 pursuant to and within the limits set out in article 2.06 hereof.

Ok its acknowledged here that there are *limits* which are referenced in 2.06 which we already went through. This reference to limits asserts there are limits, the only limits mentioned are the "license and rights".

Hence why Hyperion would never consider it a "buy-out". It says in plain English they get to keep rights and a license even if they are paid $25,000 USD.

Quote:

Said payment will first be applied against the balance of any outstanding invoices by the AmigaOne Partners via ^vis Amiga. In the event Amiga does not elect to carry out the aforementioned payment, all ownership and title in the ehancements of and additions to the Software effected by Hyperion and its subcontrators pursuant to this Agreement, shall rest with Hyperion.

So no, personally I don't consider it a "buy-out".

Last edited by fairlanefastback on 08-Jun-2007 at 01:32 AM.
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@NoelFuller

Thank you much.

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@fairlanefastback

Quote:

So you agree with the word Amiga wants to use to sway the judge

Which just happens to also be the term used by Ben Hermans himself in 2002, and 2003. You know, the very same Ben Hermans who "wrote the contract, all 17 pages of it" and signed it.

Only when *gasp* Amiga Inc actually managed not only to not go broke (damn!), but also to pony up the agreed upon amount, did he stop using that term. "Buy-in", however, is a wholly new 2007 creation....

So, on the one hand we have the very people from *both* involved companies use one term at or near the time of signing; On the other hand, we have a term made up more than half a decade after the signing of the contract, by a very interested party whose very existence depends on the buy-back not having been executed.

I know which one I will believe was the original intention. Even if it weren't for the rather unambiguous contract text.