@scabit

Thanks again - these counter-points make a lot of sense. But my impression after reading your post and Hans' is there is a big problem with all this IMO. Not with a specific date or event or detail, but in general. In essence, Hyperion starts out at a deficit before they even begin their defense. Let me explain:

I'm no lawyer, but as I understand it, a contract is composed of "good faith" interpretation, and "exceptional circumstances" clauses. If a party to the contract wishes to exercise an "exceptional circumstance" clause of the contract, it is encumbant upon them to prove beyond reasonable doubt that:

@Tigger

Thanks for these counter points. I've seen many of them. And this is certainly the one that convinces me that this is AInc.'s case to loose:

Quote:

@tigger "At any time prior to the completion of OS 4.0 and no later then 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"

To me, this leaves very little wiggle room. English is my primary language, so I'm pretty sure there is no other way to interpret "transfer, source code, interest, title". That's pretty black and white to my reading.

The word "transfer" directly contradicts "buy-in". A buy-in does not cause a transfer under any circumstances.

Scabit, was there a different contract with different language that superceded this? Because this is without question a buy-out clause.

Quote:

@tigger they mistakingly wrote receipts for $25K and sent them to Itec

Quote:

@scabit Unfortunately for them, they cannot produce receipts for these payments that show such a thing

So, is there a receipt, or isn't there? Or is Ainc. claiming they received one but lost it?

A receipt from Hyperion to Itec for $25k would settle this whole thing.

Last edited by jingof on 06-Jun-2007 at 10:34 AM.
Last edited by jingof on 06-Jun-2007 at 10:33 AM.

_________________
Vic-20, C-64, C-128
Amiga 1000, 3000
AmigaOne X1000

@jingof

bona fide / mala fide

@jingof

There are several receipts, since there were several payments towards more than one debt. It seems (from the evidence provided to the court) that the total of the payments does not meet the total of the debts (by some $250). The $25k was (according to Hyperion) the last debt, so has not yet been fully paid.

_________________
cheers
tony

Hyperion Support Forum: http://forum.hyperion-entertainment.biz/index.php

@jingof

Quote:

tonyw wrote: @jingof There are several receipts, since there were several payments towards more than one debt. It seems (from the evidence provided to the court) that the total of the payments does not meet the total of the debts (by some $250). The $25k was (according to Hyperion) the last debt, so has not yet been fully paid.

The reciept saying its for that contract clause specifically was less than $25,000 as tonyw alludes to. There is a clause saying all other debts must be paid prior to being able to apply payment to the buyin/buyout clause.

You really should read the docs yourself. Reading all the tigger posts, whether previous, and/or the ones this thread will continue to generate is not going to save you any time in the end. Best to read the docs yourself carefully, less time needed in the end, and then your opinion can truly be your own.

Because of the detailed nature of legal documents, coupled with the mental & emotional investment accured over the years by a number of posters here its not good to rely on anything but the sources that the court has to deal with.

http://news.justia.com/cases/amigahyperion/370498/

Last edited by fairlanefastback on 06-Jun-2007 at 01:38 PM.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

@Tigger

Quote:

Tigger wrote: Quote: - Amiga OS4 was completed according to the requirements in the contract in December 2004. Since Amiga Inc. didn't pay $25000 and haven't released a major new update of OS 4.x within 6 months of this completion, Amiga OS4 belongs to Hyperion First of all the OS wasnt completed in December of 2004, there have been way too many posts to the contrary in the time since then. Hyperion hasnt paid the programmers the money owed to them within 6 months of completion of the code because they have said its not done. As we say before Hyperion invoiced for 25K (they may have been shorted 1%) so they have been paid, AI may have to write a check for $250. AI couldnt release an update because Hyperion didnt release the code to them, thats Hyperions weakest arguement of the lot, and they all are pretty weak.

Quote:

Posted by Hans-Joerg Frieden (84.128.239.180) on 30-Dec-2004 10:35:48 In Reply to Comment 64 (Michel): *snip* > What we're using now is still not AmigaOS 4.0 - AT LEAST I HOPE IT'S NOT! You will know that when it say "AmigaOS 4.0 Final". > If the news item on Hyperion's website is *intentionally* written like that > (it still hasn't been corrected, btw), then of course it's deceitful Come on, you're splitting hairs. The October 20th news item mentions the "AmigaOS 4.0 Software Development Kit", and I didn't see you complain about that. The October 6th news items says "upcoming update of AmigaOS 4.0". On December 6th, it says "As a special treat for registered users of Freespace - The Great War and AmigaOS 4.0". In no way, however, is any there any attempt to make it appear as a "final" release. There is no "AmigaOS finished" item, nor is there any such reference in the text. *snip* Again, there is nothing that indicates that this is the final release, nothing tries to present it as a final release, and you will definitely know it when there is a final release. In fact, I expect that AmigaOS will again make it into the Wired Top Ten vaporware list this year.

I feel sorry for the developers as Hyperion are making them look foolish. The annoying thing is Amiga.Inc wont do any better.

_________________

@jingof

Quote:

Clearly, Hyperion owning AOS4 was not part of the "good faith" intention of the contract, so I think the burden of proof is very, very high for Hyperion. They will have to prove beyond any doubt that these circumstances arose. And probably, they'll need to explain why they invoked the ownership transfer clause without due notice or opportunity to remedy.

The same goes for Amiga Inc. as well. The "good faith" intention of the contract was that Hyperion should pay the developers and make a profit by marketing and selling Amiga OS4.0. The $25000 buy-back/buy-in is so low, because the rest was going to come from selling copies of 4.0. By not having any licensed hardware available, Amiga Inc. prevented this from happening. Demanding the transfer of all interest and title for just $25000 is clearly sticking to the letter, not the intent of the contract. I think that this is where the "buy-in" idea comes from, even through the contract sounds more like a buy-back.

I doubt that Hyperion will get ownership of OS4. However, their arguments could still weaken Amiga Inc.'s position enough to prevent the courts from taking Amiga OS 4.0 from them without being suitably compensated for their efforts.

Many people have said that Hyperion were stupid to exceed the contractual requirements for Amiga OS4. This is another "good-faith" gesture. First they had to do extra work because the original hardware never materialized. After that Amiga OS 4.0 could not be sold in it's finished state (we were told 2 years ago that it was done, but no new hardware meant that OS4.0 final became a prerelease update) because of lack of hardware, preventing Hyperion from getting a return on their investment. Rather than stall development and demand a new contract for extending Amiga OS4, they continued working on it in good faith. This has resulted in a much better product for all of us. Unfortunately, according to the letter of the contract, they don't get compensated for this effort. Of course, this assumes that the $25000 hadn't been paid in full yet, but even if it had been paid, they still hadn't had a chance to sell OS 4.0. It's all just messy.

There's a problem with trying to work with the "good-faith" intent of the contract: the two parties can't agree on what that was. Hence the only solid facts they have is the letter of the contract. I don't think that intent and good faith arguments will carry anywhere as much weight as the letter of the contract. Both parties will be throwing whatever arguments they can to try to sway the Judge's (and the Jury later, if there is a Jury trial) understanding of the contract's intent. Even if the claim sounds outlandish, it may still have an effect.

I don't think that the case is as clear cut as Tigger does, nor do I think that either side has a slam-dunk case. I don't think that either side are going to get what they are claiming is rightfully theirs.

Hans

_________________
http://hdrlab.org.nz/ - Amiga OS 4 projects, programming articles and more. Home of the RadeonHD driver for Amiga OS 4.x project.
https://keasigmadelta.com/ - More of my work.

@jingof

Quote:

Like many, I don't have time for careful analysis of the court documents.

Are you the judge?

Quote:

Hans wrote: The same goes for Amiga Inc. as well. The "good faith" intention of the contract was that Hyperion should pay the developers and make a profit by marketing and selling Amiga OS4.0. The $25000 buy-back/buy-in is so low, because the rest was going to come from selling copies of 4.0. By not having any licensed hardware available, Amiga Inc. prevented this from happening. Demanding the transfer of all interest and title for just $25000 is clearly sticking to the letter, not the intent of the contract. I think that this is where the "buy-in" idea comes from, even through the contract sounds more like a buy-back.

Hans
There was licensed hardware manufactured until December of 2004, there was product for sale until May or June of 2005. AI bought the OS back in April of 2003. Blaming AIs lack of finding a new hardware manufacture (which actually isnt there job) being the reason you didnt supply something they paid for 2 years before hardware becomes unavailable isnt a valid arguement.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Seer

Quote:

Seer wrote: @Hans What are you doing? This thread isn't about whether Amiga Inc. or Hyperion is right or wrong. Jingof asked what Hyperion's arguments were and Scabit and I summarized them. That's what they are regardless of what you think of them. No offence ment to any, but Toaks and Scabits posts are a clear and open ticket for Tigger to make a reply, especially the one from Scabit. I really see no reason to blame Tigger here for being off topic and not blame them as well.

what the hell?, here he have been ranting in threads, delivering fud and more fud and even now others get dragged into the ####, sorry but wth ?

it may sound like a joke but it was more a reality check and yes it was indeed funny but it doesnt mean it was a joke.

_________________
See my blog and collection website! . https://www.blog.amigaguru.com

@Hans

That’s well put, and I totally agree… now lets hope this legal mess is cleaned and every thing can continue where they left off, ACK gets licence, ACube gets a licence, Sony get licence and how ever else... that ask for it and is willing to pay for the work that needs to be done.

_________________
http://lifeofliveforit.blogspot.no/
Facebook::LiveForIt Software for AmigaOS

@Toaks
Quote:

what the hell?, here he have been ranting in threads, delivering fud and more fud and even now others get dragged into the ####, sorry but wth ?

I remember when the idea that Ainc. might sue Hyperion was considered "fud", as just one example of many. Tigger has an opinion, no question about that, odd that you consider it "fud". It will be interesting to see which of Tig's points, and everyone elses, becomes reality and not just "fud".

_________________
Here for the whimpering end

Quote:

jingof wrote: Quote: @tigger they mistakingly wrote receipts for $25K and sent them to Itec Quote: @scabit Unfortunately for them, they cannot produce receipts for these payments that show such a thing So, is there a receipt, or isn't there? Or is Ainc. claiming they received one but lost it? A receipt from Hyperion to Itec for $25k would settle this whole thing.

This is the data we know.

1) Hyperion wrote a receipt to Itec for $22,500 for the buyback (this is supposed to be for the money from Itec for the buyback, this is to be 90% of the money McEwen has already paid the 2500.
2) We have a wire from Kouri (Itec) to Hyperion for $20K
3) We have a wire from Tachyon (Itec subsidiary) for $2250
4) We have a wire from McEwen for $2500
5) We have Hyperion saying that the receipt 1 is the wrong amount in court, so they have only recieved 20000+2250+2500 or $24750, that may be totally correct, but unless Hyperion can show they informed AI of that, and AI refused to send the $250, AI has every right to the code maybe without paying the missing $250.
6) We have a receipt from Hyperion for 5K for Mesa for DE to AI
7) We know KMOS paid substantial funds to Hyperion as part of the Arctic PDA effort
8) AI claims to have paid additional $7750 in additional funds before the November 2006 cutoff letter
9) AIs lawyer wired $8850 in additional funds as part of the November 2006 letter which is an amount they claim Ben specifically said was still owed by AI.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

Quote:

Toaks wrote: what the hell?, here he have been ranting in threads, delivering fud and more fud and even now others get dragged into the ####, sorry but wth ?

The truth isnt FUD toaks though you are apparently channeling MikeB. It wasnt FUD when I said AI was likely to buyback the OS over a year ago with a 25K check. If fact it turns out that had already happened. It wasnt FUD when I said AI had been kicked out of there offices, it wasnt FUD when said AI was going to end up suing Hyperion, its not FUD now when I say that its likely that the judge is going to give an injunction to AI this week. FUD stands for Fear Uncertainy and Doubt. What exactly is there to spread FUD about with regard to OS 4.0 anyways? The OS cant be sold until the court case is over, when its over, AI will likely have alot more control of it then they have now, unless Hyperion has a good live rabbit to pull out of its hat, which would be different then the bright pink stuffed ones Ben apparently thought the judge would accept as real so he has peppered the responses with them.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

Tigger wrote: Quote: Hans wrote: The same goes for Amiga Inc. as well. The "good faith" intention of the contract was that Hyperion should pay the developers and make a profit by marketing and selling Amiga OS4.0. The $25000 buy-back/buy-in is so low, because the rest was going to come from selling copies of 4.0. By not having any licensed hardware available, Amiga Inc. prevented this from happening. Demanding the transfer of all interest and title for just $25000 is clearly sticking to the letter, not the intent of the contract. I think that this is where the "buy-in" idea comes from, even through the contract sounds more like a buy-back. Hans There was licensed hardware manufactured until December of 2004, there was product for sale until May or June of 2005. AI bought the OS back in April of 2003. Blaming AIs lack of finding a new hardware manufacture (which actually isnt there job) being the reason you didnt supply something they paid for 2 years before hardware becomes unavailable isnt a valid arguement. -Tig

That depends on whose version of events you listen to. If the payment wasn't in full at the time (after subtracting other debts) as Hyperion then it is a perfectly valid argument, especially if you factor in the extra time and money Hyperion claims to have needed due to Amiga Inc. failing to provide the necessary sources. In the context of "the good-will intent of the contract" it is a valid argument too. You're claim that it is not a valid argument is based on the assertion that Amiga Inc's version of events is completely true. Looking at the arguments in a wider context, rather than in isolation, makes them look credible, at least IMHO.

Hans

_________________
http://hdrlab.org.nz/ - Amiga OS 4 projects, programming articles and more. Home of the RadeonHD driver for Amiga OS 4.x project.
https://keasigmadelta.com/ - More of my work.

@Tigger

Another point raised by Hyperion is about the transfer of the Agreement rights from Amiga Inc Seattle to ITEC INC. there has been no documentation provided thus far by Amiga Inc. They have show transfer documents from ITEC to KMOS but not from Amiga to Itec.

_________________
Sam460ex : Radeon Rx550 Single slot Video Card : SIL3112 SATA card

@Tigger

Quote:

4) We have a wire from McEwen for $2500

We have a request, not proof it went through. Something Hyperion specifically pointed out.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200

Quote:

Hans wrote: That depends on whose version of events you listen to. If the payment wasn't in full at the time (after subtracting other debts) as Hyperion then it is a perfectly valid argument, especially if you factor in the extra time and money Hyperion claims to have needed due to Amiga Inc. failing to provide the necessary sources.

Actually no, Hyperions lawyer in courts arguement was that they only paid $24750 but they wrote receipts for $25K, that appears from the evidence to be true, but hurts not helps Hyperions case unless Hyperion comes up with info from AI acknologing the $250 debt and not paying it. If AI Has receipts totalling $25K they have every right to believe they have paid in full, this is long before May of 2005. As for the extra time and expenses incurred by Hyperion, Hyperions chance to rectify that was BEFORE signing the bill of sale on April 23, 2003, after that they have little recourse.

Quote:

In the context of "the good-will intent of the contract" it is a valid argument too. You're claim that it is not a valid argument is based on the assertion that Amiga Inc's version of events is completely true. Looking at the arguments in a wider context, rather than in isolation, makes them look credible, at least IMHO.

I dont believe McEwen as far as I can throw him, but the 2001 contract, the bill of sale, the Arctic contract and the receipts and money transfer documents make a pretty strong case for them. We have Hyperion say it was a buy in agreement, the language in the contract (which was written by Ben) doesnt point to that at all. We have Hyperion saying they dont believe Itec or KMOS were successor companies (yet they did business with that that would have been illegal if they werent the successor company). We have Hyperion saying they had full control of the OS because AI was insolvent, yet they were 1) still telling everyone they needed a license from AI 2) still doing business with KMOS as if they were AIs successor. Hyperion may have case, but they need to start making it, so far most of the data they have presented has hurt and not helped them.
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Spectre660

Quote:

Spectre660 wrote: @Tigger Another point raised by Hyperion is about the transfer of the Agreement rights from Amiga Inc Seattle to ITEC INC. there has been no documentation provided thus far by Amiga Inc. They have show transfer documents from ITEC to KMOS but not from Amiga to Itec.

It doesnt really matter Spectre, Hyperion signed a bill of sale for the OS with Itec on April 23, 2003. Hyperion knew that Itec had bought the OS at that point, or do you think I could have called up and bought the OS from Hyperion for 25K?
-Tig

_________________
We played the first thing that came to our heads, it just happened to be the best song in the world.

@Tigger

Quote:

It doesnt really matter Spectre, Hyperion signed a bill of sale for the OS with Itec on April 23, 2003.

The language game can be played all day. Hyperion issued a reciept for partial payment in relation to the clauses related to the buy-in/buy-out.

Quote:

Hyperion knew that Itec had bought the OS at that point

Obviously they say differently.

_________________
Pegasos2 G3 running AOS 4.1 and MorphOS 2.0
Amikit user, tinkering with Icaros VM (AROS)
EFIKA owner
Amiga 1200