@Tigger

Quote:

@Spectre660 ]'m sorry, but there is no warranty implied in the 2001 contract that is broken and the new lawsuit isnt about a warranty especially with regard to 3.9. Next time before you comment about legal documents, why dont you actually read them. And you still havent explained why you think starting a second suit in Washington over the exact same contract with the exact same arguement isnt a really bad idea that is going to upset a judge or 2.

New documents should be due in Washington and New York by the end of this week.

You have show that you do not fully read what people post before you start your pathetic rants.
You have been wrong on many things. I am sure that trend will continue.

Let me remind myself of were you were wrong.
(1) the Injunction
(2) Joining of Itec in Washington.

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

@COBRA

Quote:

COBRA wrote: see clause 2.1 of the 2001 contract, which clearly states that the AmigaOne partners get exclusive right to market and distribute. AInc according to the contract have no right to offer OS4 to customers and to take money for it. The fact that they have already done that before the contract was signed simply means they have already breached the contract when it was signed, since they had the money for sales of OS4 and those who paid were expecting to receive the OS when it was first released.

First of all they are just offering rebate coupons, thats not in violation of anything. Hyperion still sold the product, then AI was to send them cash back. Its no different then when I buy my HDTV at Bestbuy send in the receipt and a form and Sony sends me a check. We won't see Hyperion argue that the company was in violation before they signed the contract, because usually the court will strike such a clause from the contract due to that fact. A company can't implicitly be forced to stop carrying out an action they are doing before the contract, its similar to the problem with 2.07 that the clause wont survive court if they decide by the definition they use AI was insolvent on Nov 3, 2001.

Quote:

The clauses of the contract apply as long as the contract is valid (e.g. not cancelled), and one party breaching the contract is not stopped by another party also breaching it. Besides, even if the lateness of completion can be blamed on Hyperion (which would be difficult considering that they did not provide Hyperion the required source code in the first place), there have been no complaints from Amino regarding the completion date of OS4, so what are you talking about?

If someone is upset about the coupons, the only valid arguement is that it cost them sales, that might even be a valid arguement except for a couple of problems. The OS was really late, its still not delivered for the platform the majority of the coupons were likely bought for and it hit EOL before everyone who could buy one could get one, all of those badly hurt Hyperions story that the coupons hurt sales. In addition, Hyperoin acquired the 3.1 code within a month of signing the contract, a 1 month delay even a 2 month delay is understandable given it took longer to get the code then they thought, but a 5 year delay? How do you figure getting the code a month late adds up to a 5 year delay?

Quote:

Quote: and of course the hardware issue, all of which are squarely to blame on Hyperion. Umm, last time I checked the 2001 contract, Hyperion did not have any responsibilities with regards to hardware.

Hyperion brought Eyetech to the dance, its not AI's fault they had a wooden leg.

Quote:

Not much new except that the plaintiff is a third company, not Itec and not Amiga Delaware, but Amino (which used to be Amiga Washington), which was thought to be defunct.

So join them to the current lawsuit, AI(w) is all through there current effort, the judges are not going to take forum shopping lightly, they never do.

Quote:

The fact that they're active means they are liable for any debts and entering a lawsuit means all their dirty laundry will come to the surface. Also, because there's no valid transfer of the contract to either Itec or AInc(D), the contract is with Amino (previously Amiga Washington), who is as it turns out still an active company doing business. Amino have certainly not executed any buyin, and have not paid any money to Hyperion, and it has been well over 6 months past the completion of OS4, regardless of which date you pick. Therefore even if the insolvency clause would not be granted by the judge, Hyperion still get the rights to OS4.

First of all, none of the debts are to Hyperion and Hyperion isnt actually suing for debts, they apparently think that despite only selling less then 1000 copies of OS4, they are due the money for the 1800 coupons that AI sold even they never actually gave that money to people, I'm sure as good as Hyperion has been at keeping records of who bought OS4, that those $50 checks will be in the mail very soon. Itec bought the OS from Hyperion, Hyperion signed the contract and Itec has more then paid $25K, this was a silly arguement when they started it and its still a silly arguement. If they didnt think Itec had the right to buy the OS, they shouldnt have signed the contract, they did, they got paid, they need to deliver the OS.
-Tig

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

@COBRA

Quote:

COBRA wrote: Considering that the 2003 contract specifically states that it is in accordance with the 2001 contract, I don't understand why you think repeating that nonesense is going to make it correct. Besides, the 2003 contract was never executed since Itec never transferred the required amount of money (they were $250 short IIRC) and therefore they never received any rights in the first place, so it's a non-issue.

Because its the truth. Nothing in the 2003 contract says that Itec must be the owner of the 2001 contract for it to be executed. They paid more then 25K as we've seen before the lawsuit, plus they sent a $25K check earlier this year, Hyperion has been paid in excess of 25K, and needs to deliver the OS to Itec.
-Tig

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

@Tigger

I can't say how much I disagree with your point of view on more than one level.. I am curious to just where your information source comes from. With the amount of postings you do on this subject it would be nice to have some disclosure of where your information source comes from that makes you so sure on these matters. So we can either agree with you or not and know the basis for your information.

The whole situation reminds me of the push for the Iraq war, there is intelligence, but how do we know the intelligence is good when you come in with such pronouncements..

In the end I hope you are wrong about your information, because the community will suffer (IMHO)..Why don't you just stop with these posts if you can't divulge your information source. It's obvious that you are in Amiga Inc.'s camp and since it is being litigated, it would be more fair not to have this info out their poisoning the pool with litigation in progress..

Please don't consider this a flame or a personal attack. I am just tired of coming in and reading these types of posts from you and others. The parties in court can't talk about "pending litigation" legally as far as I know. I would just like to know where you are an authority on the litigation..

@Tigger

Quote:

Hyperion brought Eyetech to the dance, its not AI's fault they had a wooden leg.

My understanding is that it was the other way round. Eyetech brought Hyperion to the table (Dance)

_________________
Peter Swallow.
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."

@Tigger

Quote:

First of all they are just offering rebate coupons, thats not in violation of anything. Hyperion still sold the product, then AI was to send them cash back. Its no different then when I buy my HDTV at Bestbuy send in the receipt and a form and Sony sends me a check.

That analogy would be correct if Bestbuy would have an exclusive right to develop, market and distribute the HDTV, and despite that Sony would be selling coupons and taking pre-orders without any agreement with Bestbuy. So the bottom line: AInc breached the contract with the partypack/etc.

Quote:

A company can't implicitly be forced to stop carrying out an action they are doing before the contract

Of course they can. For example I sign a contract in which I warrant that I'm the exclusive owner of some "goods" which I will provide, even though that is not the case. By signing the contract, I have immediately breached one of its clauses. A judge isn't going to be impressed by my saying "oh, but that was the case even before the contract was signed". The same goes for anything else. By signing the contract, AInc have promised to obey it, and that means taking care of any outstanding issues.

Quote:

Hyperion brought Eyetech to the dance, its not AI's fault they had a wooden leg.

Nope, AInc decided to contract with 2 companies: Hyperion to develop the OS, and Eyetech to develop the hardware. Nobody forced them to deal with Eyetech, especially not Hyperion.

Quote:

So join them to the current lawsuit, AI(w) is all through there current effort, the judges are not going to take forum shopping lightly, they never do.

It's very likely that Hyperion itself will want this one to be joined to the current case, after all they requested Itec to be joined to the Washington case as well, and it will certainly look bad for McEwen & Co. to sit in front of the judge and explain the proceedings of the three companies he was involved with in the past few years. In my opinion starting it now as a seperate case speeds things up quite a bit, there's no other reason I can think of why Hyperion did not request Amino to be added as a counterclaim defendant like they did with Itec.

@DonnieA2

Quote:

DonnieA2 wrote: @Tigger I can't say how much I disagree with your point of view on more than one level.. I am curious to just where your information source comes from. With the amount of postings you do on this subject it would be nice to have some disclosure of where your information source comes from that makes you so sure on these matters. So we can either agree with you or not and know the basis for your information.

The publically available documents is my source on virtually everything, do you have a particular point you want to make on this?
-Tig

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

@Tigger

Quote:

Because its the truth. Nothing in the 2003 contract says that Itec must be the owner of the 2001 contract for it to be executed.

It does, as it refers to that contract and specifically states that this transfer of rights is in accordance with the 2001 contract between Hyperion, Eyetech and Amiga. Itec must have read what they signed, and by signing that contract they have confirmed that they know the 2001 contract and they know its terms and that they are making this transfer in accordance with that contract, meaning they claim to be the successor of the contract, since it is the only way the contract. So either Itec has never seen the contract, in which case they'll have a hard time explaining what they thought they have signed, or they did have the contract, in which case they indeed claimed to be the successor, and they'll have to explain who they got the contract from, and by claiming to own rights they did not, they have commited fraud. It's going to be either one or the other. If it's the former, they can get away with it by a simple "we signed it by error" explanation, and ask for the money to be returned. If it's the latter, then they have commited fraud. In either case they won't be able to get their hands on OS4 code from the NY case. One thing that could happen is for Amino (old Amiga Washington) make a complaint that Hyperion signed that contract with Itec to send them property which is theirs. However since nothing was sent to Itec, there was no harm done to Amiga Washington, no damages, so such a complaint wouldn't get anywhere either.

@Tigger

Quote:

[b]Hyperion brought Eyetech to the dance, its not AI's fault they had a wooden leg.

[/quote]

No, you are totally wrong on this suject. I remember very well reading a few years back a written interview from the manager of Eyetech.

He clearly stated that he met Bill McEwen on an Amiga Shown -I think in the USA-.

They talked about launching an OS4 capable hardware (note that McEwen approached Eyetech not the other way around in the show).

Then, when the shown ended, Eyetech told him that they would consider it but they weren't sure about it.

After a week, McEwen announced that Eyetech would provide the hardware WITHOUT even asking the other party if they have come into a final conclusion.

I remember from the staff of Eyetech using the exact words in the interview "[...] like a typical american marketer".

_________________

@COBRA

Quote:

COBRA wrote: That analogy would be correct if Bestbuy would have an exclusive right to develop, market and distribute the HDTV, and despite that Sony would be selling coupons and taking pre-orders without any agreement with Bestbuy. So the bottom line: AInc breached the contract with the partypack/etc.

First of all Bestbuy does in fact have exclusive products (though I disagree with that point) and AI didnt take preorders. AI offered credit ($100 for the Party Pack and $50 on the Amiga contest, which eventually became sCAM etc) on future Amiga products including OS 4.0. There is no breach of the contract at all.

Quote:

A company can't implicitly be forced to stop carrying out an action they are doing before the contract

Of course they can. For example I sign a contract in which I warrant that I'm the exclusive owner of some "goods" which I will provide, even though that is not the case. By signing the contract, I have immediately breached one of its clauses.
[/quote]

Yes but your analogy is poor because you have explicitly said you will provide it and nowhere in the contract does it say that AI will not sell Party Packs, coupons etc, since they were doing it before the contract, unless the contract says they can't or it by definition interferes with Hyperions efforts (which it doesnt) then they are ok to do it after.

Quote:

By signing the contract, AInc have promised to obey it, and that means taking care of any outstanding issues.

Point to the section of the contract that explicitly says they cannot offer rebates on OS 4.

Quote:

Nope, AInc decided to contract with 2 companies: Hyperion to develop the OS, and Eyetech to develop the hardware. Nobody forced them to deal with Eyetech, especially not Hyperion.

No, the contract is not a three party contract as several of us have pointed out, its a two party contract with Eyetech and Hyperion as a one of the parties that are in fact called the AmigaOne Partners.

Quote:

It's very likely that Hyperion itself will want this one to be joined to the current case, after all they requested Itec to be joined to the Washington case as well, and it will certainly look bad for McEwen & Co. to sit in front of the judge and explain the proceedings of the three companies he was involved with in the past few years.

Actually Hyperion can't join it now, only AI can ask for it to be joined, so your idea is wrong in this case, so they obviously dont want it joined or there lawyer is incompetant, you pick which you think is true.

Quote:

In my opinion starting it now as a seperate case speeds things up quite a bit, there's no other reason I can think of why Hyperion did not request Amino to be added as a counterclaim defendant like they did with Itec.

There is no way this will speed it up, the joining of Itec (if it occurs, we have not heard Itec's response yet) has slowed the case down hugely, if the case is joined Amino will have an additional 60 days to respond and then we will have even more delays for responses from 3 different companies. This is a huge delaying tactic to allow them to start selling OS4 for the classic is my only thought for delaying but there lawyer bill is got to be higher then any money they will make on sales of Classic OS4.
-Tig

Last edited by Tigger on 06-Nov-2007 at 03:57 PM.

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

@Cool_amigaN

Your reference is to the pre-Nov 3, 2001 boards when Eyetech was one of several hardware suppliers for next generation amigas. Hyperion came up with the Nov 3, 2001 contract and brought Eyetech in as the EXCLUSIVE new hardware supplier for OS 4 according to Ben Hermans, unless you have a source you can point to.
-Tig

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

@COBRA

Quote:

COBRA wrote: @Tigger Quote: Because its the truth. Nothing in the 2003 contract says that Itec must be the owner of the 2001 contract for it to be executed. It does, as it refers to that contract and specifically states that this transfer of rights is in accordance with the 2001 contract between Hyperion, Eyetech and Amiga. Itec must have read what they signed, and by signing that contract they have confirmed that they know the 2001 contract and they know its terms and that they are making this transfer in accordance with that contract, meaning they claim to be the successor of the contract, since it is the only way the contract.

This is the entire 2003 contract:

"Hyperion confirms that for the receipt of 25,000.00 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 so under existing agreements with third party developers whose work shall be integrated in OS 4.0."

Now where here does it say that Itec must be the successor of AI for them to do this. Thats why they are going to lose the case in NY and eventually in Washington.
-Tig

Last edited by Tigger on 06-Nov-2007 at 04:12 PM.

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

@Tigger

Quote:

AI offered credit ($100 for the Party Pack and $50 on the Amiga contest, which eventually became sCAM etc) on future Amiga products including OS 4.0. There is no breach of the contract at all.

Sorry Tig, but Amiga offered free copies of OS4.0 and 4.2 with the Party Pack, the $100 credit was for an AmigaOne. You could choose one or the other. Neither of them were honoured by Amiga Inc and the frustrated customers where expecting Hyperion to provide the free copies of OS4, etc. You can't deny that these acts by Amiga Inc. created a lot of damage in Hyperion's market, a market where Hyperion had exclusive rights according to the contract, and Amiga Inc. were not allowed to interfere.

Quote:

Yes but your analogy is poor because you have explicitly said you will provide it and nowhere in the contract does it say that AI will not sell Party Packs, coupons etc, since they were doing it before the contract, unless the contract says they can't or it by definition interferes with Hyperions efforts (which it doesnt) then they are ok to do it after.

You are correct in that the contract does not explicitly mention "Party Pack", rather it states that Hyperion have exclusive rights in the market, and Amiga Inc. shall not make money from OS4 apart from the royalties from 4.1 up. Despite that they used the Party Pack and "I am Amiga" coupon schemes to raise money on Os4, and made a substantial amount of money from them. That is clearly a breach of contract.

Quote:

Point to the section of the contract that explicitly says they cannot offer rebates on OS 4.

I already have, seems you didn't pay attention. It's clause 2.01 of the contract, which says the AmigaOne partners get exclusive rights to market and distribute the OS. Rebates are marketing, and last time I checked, Amiga Inc. was not one of the "AmigaOne partners"... And I hope I don't have to explain to you what "exclusive right" means...

Quote:

No, the contract is not a three party contract as several of us have pointed out, its a two party contract with Eyetech and Hyperion as a one of the parties that are in fact called the AmigaOne Partners.

Wrong again. The term "AmigaOne partners" is a collective term used to refer to the two companies Hyperion and Eyetech collectively, for simplifying the contract, it does not make the two companies a single legal entity, and all 3 companies are listed seperately in the beginning of the contract, and it is clearly described by the contract that Eyetech will develop the hardware, and Hyperion will develop the OS. If you argue that Hyperion has any responsibilities with regards to providing hardware, you either haven't read the contract, or you have trouble understanding english...

Quote:

This is a huge delaying tactic to allow them to start selling OS4 for the classic is my only thought for delaying but there lawyer bill is got to be higher then any money they will make on sales of Classic OS4.

If you imply that this is the case, that proves that you have little understanding of what is going on. When the judge denied Amiga Inc's request for Preliminary Injunction, it restored the original status quo, meaning Hyperion can continue business according to the terms and conditions of the 2001 contract as long as the court case lasts and until a decision is made by the judge. Since the 2001 contract gives Hyperion the right to market and distribute OS4 for classic PPC Amigas, there's no need for any delay tactics.

Also, if we look at your other claim that Hyperion think they are losing, then delay tactics are not a sensible choice either, since the longer the case lasts, the more money they will have to pay for legal expenses of both AI and themselves.

Last edited by COBRA on 06-Nov-2007 at 04:49 PM.
Last edited by COBRA on 06-Nov-2007 at 04:49 PM.
Last edited by COBRA on 06-Nov-2007 at 04:46 PM.

@Tigger

Quote:

Now where here does it say that Itec must be the successor of AI for them to do this. Thats why they are going to lose the case in NY and eventually in Washington.

Let me help you (note the bit I highlighted in the text):

"Hyperion confirms that for the receipt of 25,000.00 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 so under existing agreements with third party developers whose work shall be integrated in OS 4.0."

Since this is in accordance with the 2001 agreement, it means Itec must be in possession of said agreement. If they are in possession of the agreement, they are either a legal successor (e.g. they have obtained the agreement legally from the former owner), or they have obtained the agreement illegally (by stealing it, or whatever) and claim to be a successor. As far as Hyperion is concerned, Itec could not legally sign this document, if they were not in legal possession of the 2001 agreement.

Last edited by COBRA on 06-Nov-2007 at 04:55 PM.

@COBRA

As far as understanding goes the watershed thread would have been the one that touches on the AMIGA Inc version of the "Arctic Agreement".

I raised the issue that the Amiga Inc version of the contract was strange as it did not have any reference to the amount of money or method of calculation for payment for the work done.

I even asked how many "Developers" had ever signed a contract like that.

No one responded to this so it leaves me to belive that there are some big gaps
in certain peoples understanding of contracts.

Lo and behold the Hyperion version of the "Artic agreement" has the Payment formula and led to a "man hour"/ "Man Year" discussion in another thread.

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

@COBRA

Quote:

If you imply that this is the case, that proves that you have little understanding of what is going on. When the judge denied Amiga Inc's request for Preliminary Injunction, it restored the original status quo, meaning Hyperion can continue business according to the terms and conditions of the 2001 contract as long as the court case lasts and until a decision is made by the judge. Since the 2001 contract gives Hyperion the right to market and distribute OS4 for classic PPC Amigas, there's no need for any delay tactics.

The status quo as presented in AMIGA INC's request for an injunction is
(1) OS4 is finished (A1 and Classic)
(2) OS4 is Shipping (A1 and Classic)

The judgge saw fit to leave it that way due to Amiga INC's weak evidence.

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

@COBRA

Bout the coupons:

AFAWK Hyperion sold exactly 1 copy of the OS for every "AmigaOne" ever produced, so they can hardly claim lost sales based on this. Wether they will be able to proove any lost sales for the Classic-version is questionable, the judge might just say something like "doh, your 5 years late, no wonder your market went away "

_________________
- We don't need good ideas, we haven't run out on bad ones yet
- blame Canada

@Kronos

Quote:

AFAWK Hyperion sold exactly 1 copy of the OS for every "AmigaOne" ever produced

You're right on that, finally someone with a valid argument!

However you can't deny that Amiga Inc. did make money on OS4 which they were not allowed to do under the OS4 contract, in fact apparently Amiga Inc. made more money on OS4 so far then Hyperion has (with whatever means). This obviously violates Hyperion's exclusive rights to the market.

Quote:

the judge might just say something like "doh, your 5 years late, no wonder your market went away "

I don't think that it would be the judge himself deciding the amount of damages caused by Amiga Inc's actions, that would probably be estimated by an expert, and that expert would take into account anything from the damages caused by creating bad public image (e.g. making customers frustrated and fed up, and potential customers reading about it not buying Hyperion's product), etc. I think the good thing about the fact that Hyperion brought this up in the case is that they can ask the judge to decide on Amiga Inc. having to pay that outstanding money to them, so that they can compensate all the people who paid it back then.

@COBRA

AInc didn't make money on OS4, they made money on selling coupons, which they would later refund after an AmigaOne or (!!) OS4 was bought. It matters even less wether AInc made more or less money on them then Hyperion on the OS.

It's offcourse complete nonsense, that this money should be paid "back" to Hyperion, as it never was to go through Hyperion's hands, and Hyperion never delivered anything based on these coupons (read a free copy of OS4).

The money should be paid back to the actual users, but since this isn't a part of the ongoing case(s), it's not within the judge's power to decide (read a lawsuit by the users would be required).

_________________
- We don't need good ideas, we haven't run out on bad ones yet
- blame Canada

@Kronos

Quote:

AInc didn't make money on OS4, they made money on selling coupons

They took that money from people anticipating the release of OS4, e.g. from the customers which made up the market for OS4. If there was no OS4, they could not have made that money, thus they made that money on OS4. And since only Hyperion and Eyetech had exclusive rights to market OS4, only they would have been allowed to conduct such coupon schemes, and take money in advance from their future customers.

Quote:

It's offcourse complete nonsense, that this money should be paid "back" to Hyperion, as it never was to go through Hyperion's hands

No, the money obviously belongs to those who bought thet coupons/pack, not Hyperion. However currently only Hyperion and Eyetech have the right to deal with the OS4 customers, the market is theirs exclusively.