@COBRA

The Amiga/ITec lawyers seem to be afraid of Pentti. Why else would they not tell him that they are wasting time with this line of argument.

Wait till the same lawyer who was part of the Oral hearing for Amiga(even though he said nothing) opens his mouth as a lawyer for ITEC in Oral hearings singing a different tune. Is the Judge going to be happy about it ? .I think not.

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@COBRA

Quote:

@Spectre660 Itec claims that it is not necessary for them to be the assignee of the related trademarks to be able to buy the OS. That is obviously going to be an issue in court. I was simply going down the road of "what if that was in fact correct", what would its implications be, how would it work with regards to the 2001 contract, and the rights of the parties to the 2001 contract. It's only a thought exercise.

A thought exercise that ITEC do not seem to have gone very far with before
their arguments.

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@COBRA

Quote:

COBRA wrote: Had they done it that way, it would not be legally questionable now.

You and Dandy and others keep saying things like this. The 2001 contract isnt a law, though you seem to be implying it is. The 2003 contract can stomp all over the 2001 contract and still be completely legal (ie not legally questionable or illegal). I can see no way in which Itec can have broken a LAW by signing the 2003 contract. I'm doubtful after 4 years that a judge will say Hyperion has violated a law by signing the 2003 contract, and they definitely wont do it unless another member of the 2001 contract shows up to complain.
-Tig

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@COBRA

Quote:

COBRA wrote: @Spectre660 Itec claims that it is not necessary for them to be the assignee of the related trademarks to be able to buy the OS. That is obviously going to be an issue in court. I was simply going down the road of "what if that was in fact correct", what would its implications be, how would it work with regards to the 2001 contract, and the rights of the parties to the 2001 contract. It's only a thought exercise.

Why do you think they would have to be an assignee for them to buy the OS? What law do you think forces them to own the trademarks to buy the OS?
-Tig

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

@Tigger

as a question for the future
Who do you think authorized the Amiga(D) lawsuit against Hyperion ?

(1) Pentii
(2) Bill
(3) John G.
(4) Fleecy

Last edited by Spectre660 on 20-Nov-2007 at 12:47 PM.

_________________
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@Spectre660

Quote:

Spectre660 wrote: @Tigger as a question for the future Who do you think authorized the Amiga(D) lawsuit against Hyperion ? (1) Pentii (2) Bill (3) John G. (4) Feecy

Thats a pretty silly question. Lets look at the people and there jobs at KMOS

1) Chairman and CEO
2) VP of US Operations (Also claims to be acting president)
3) Corporate Secretary
4) Consultant (on Sheep and Farm animals most likely, but that hasnt been nailed down)

So I'm going to go with #1. Who do you think authorized it?
-Tig

_________________
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@Tigger

Quote:

The 2001 contract isnt a law, though you seem to be implying it is.

It is a legal contract, with terms and conditions, and the parties who signed it are bound to it. You cannot just dismiss the 2001 contract and say "ooh, I have this 2003 contract, I like it much better, so let's just forget about what the parties are allowed to do under the 2001 contract".

Quote:

Why do you think they would have to be an assignee for them to buy the OS? What law do you think forces them to own the trademarks to buy the OS?

I didn't say they have to be, I said it's going to be an issue in court.

Last edited by COBRA on 20-Nov-2007 at 12:59 PM.

@Tigger

Quote:

Thats a pretty silly question. Lets look at the people and there jobs at KMOS 1) Chairman and CEO 2) VP of US Operations (Also claims to be acting president) 3) Corporate Secretary 4) Consultant (on Sheep and Farm animals most likely, but that hasnt been nailed down) So I'm going to go with #1. Who do you think authorized it? -Tig

#1 sounds like the Man.

Do you think that #1 was aware of the Content of the Amiga(D) suit or did he leave
it to #2 ?[/quote]

_________________
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@COBRA

Quote:

COBRA wrote: @Tigger Quote: The 2001 contract isnt a law, though you seem to be implying it is. It is a legal contract, with terms and conditions, and the parties who signed it are bound to it. You cannot just dismiss the 2001 contract and say "ooh, I have this 2003 contract, I like it much better, so let's just forget about what the parties are allowed to do under the 2001 contract".

But they are both legal contracts, and Hyperion (the only company that signed them both) is trying to say that the 2003 contract doesnt apply because they did something in the 2003 contract that conflicts with others rights under the 2001 contract. Thats the same thing you think they can't do with the 2003 contract. The only signee of the 2001 contract that is objecting to the 2003 contract as of today is the actual party that signed both. No way the judge is going to let that argument have any weight.
-Tig

_________________
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@Spectre660

Quote:

Spectre660 wrote: #1 sounds like the Man. Do you think that #1 was aware of the Content of the Amiga(D) suit or did he leave it to #2 ?

[/quote]

I think he would be surpised the way the case has become much more about the source code then the trademark issues, which is going to lead to bigger issues for Hyperion, because even winning the buyback issue and losing the other 3 points woudl put Hyperion out of business.
-Tig

_________________
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@Tigger

Quote:

But they are both legal contracts, and Hyperion (the only company that signed them both) is trying to say that the 2003 contract doesnt apply because they did something in the 2003 contract that conflicts with others rights under the 2001 contract.

I'm not talking about what Hyperion claims, we're simply examining the contracts and determining the legality of them. The 2001 contract is signed by all companies who are party to the contract, it seems to be a valid and authenic document, nobody disputes that. The 2003 contract on the other hand is problematic, and we have already discussed the points which make it problematic, so I think there's no point in going over them again.

Quote:

No way the judge is going to let that argument have any weight.

These kinds of comments from you I always find really entertaining Especially when we consider that the judge denied preliminary injunction with that argument being the number 1 cause, that AI(D) cannot prove that they're a successor of interest, due to the missing "transfer of rights" documents with the written acceptance of all parties. Let me quote:

"In the absence of proof of Amiga Delaware's status as lawful successor in interest to the rights set forth in the Agreement, and of Hyperion's and Eyetech's written acceptance thereof in compliance with 7.12 of the Agreement, it cannot be said that plaintiff has demonstrated a strong likelihood of success on the merits. The motion for a preliminary injunction may be denied on this basis alone."

I think I'd rather not take your word on what you think the judge will say

@Kronos

Quote:

Kronos wrote: @Dandy ... Back to the drama at hand: Hyperion may not have had the right to sign on the behalf of Eyetech, but if they did they are both liable for fullfilling the contract AND any damages Eyetech might claim from it .....

Yes - but for me these questions arise:
Lets - for the sake of the argument - assume that Hyp. had no right to sign on behalf of Eytech.

1) Did they sign a contract on behalf of Eyetech at all?
2) If yes, can this contract with an unlawfully signature on it, be legal in the US and come to validity (THIS is the point I`m still refusing to believe - HERE a contract with an unlawfully signature on it has no legal binding, AFAIK)?

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Dandy
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(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @AmigaHeretic ... Eyetech likes AI more then they like Hyperion. ...

I take this as your personal guess.
Otherwise I would expect them to have sued Hyperion long ago...

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@umisef

Quote:

umisef wrote: @Dandy Quote: Certainly, as Google and people from Melbourne equally are intimate connoisseurs of German jurisdiction. Sach mal, Du Depp, Dir *ist* bewusst wo ich urpsruenglich herkomme, oder etwa nicht?

Erstmal danke für den "Depp" - aber Hellseher bin ich nunmal nicht - und unter Deinem Avatar steht nunmal dick und breit:

"From: Melbourne, Australia"

Wie soll ich denn da riechen, daß Du aus Deutschland stammst, wenn ich Dich nicht kenne? Schließlich bist Du nicht Boris Becker oder Michael Schumacher - die kennt jeder, Du norddeutscher Frikadellenwender, Du...

_________________
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Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @AmigaPhil ... No the grouping is very important (in US law) to point us to being a two party contract we even have a name for the second party which is the AmigaOne partners. ...

Hmmmmmmmmmmmm - is this part of the 2001 contract

"(OEM) LICENSE AND SOFTWARE DEVELOPMENT AGREEMENT

This agreement (this "Agreement")is made ...

by and between:

1. Amiga Inc. (hereafter: "Amiga"), ...

and

2. Hyperion VOF (hereafter: "Hyperion"), ...

3. Eytech Group Ltd. (hereafter: "Eyetech")"

what would be called a "heading" in the English language?




EDIT:
How can I get the colour for the fonts to work?
I put "[*color=0000FF*]" in front of- and "[*/color*]" behind each line - but no colour...

(had to insert the asterikses in the commands - otherwise they would not be displayed)

Last edited by Dandy on 23-Nov-2007 at 09:58 AM.
Last edited by Dandy on 23-Nov-2007 at 09:57 AM.
Last edited by Dandy on 23-Nov-2007 at 09:56 AM.
Last edited by Dandy on 23-Nov-2007 at 09:53 AM.

_________________
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Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @Dandy Quote: Dandy wrote: Didn't you say just a few posts earlier that the contract wasn't sold? No I said the 2001 contract wasnt sold to Itec, that appears to be true now. In actuality both contracts have been sold. The 2003 contract was sold to KMOS in 2003 and the 2001 contract was sold to KMOS in 2004. The key point we now know is that the 2001 contract wasnt ever sold to Itec, it went directly from Amino to KMOS.

O.K. - but how could ITEC then sell OS4 to KMOS, if they were not the legal owners of it (i.e. not the owners of the 2001 contract)?
Is it legal/common in the US to sell other persons/companies property?

_________________
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Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Tigger

Quote:

Tigger wrote: @AmigaPhil ... the issue is the contract is a two party contract. ...

Hmmmmmm - while scrutinizing the 2001 contract once again, I found terms that seem to support your view the contract being a two party contract, as well as terms that support my and others view the contract being a three party contract.
I quoted the relevant parts and highlighted the important terms:

2001 Contract

Quote:

2001 contract states: on page 48: (OEM) LICENSE AND SOFTWARE DEVELOPMENT AGREEMENT This agreement (this "Agreement") is made ... by and between: 1. Amiga Inc. (hereafter: "Amiga"), ... and 2. Hyperion VOF (hereafter: "Hyperion"), ... 3. Eytech Group Ltd. (hereafter: "Eyetech") RECITALS ... WHEREAS Amiga has decided to contract with Eyetech for the development of the Amiga One product; ... WHEREAS Amiga has decided to contract with Hyperion for the development of Amiga OS 4.0; NOW,THEREFORE, for good and valuable consideration, receipt and sufficiantly of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: Article I. DEFINITIONS ... "Amiga One Partners" means Eyetech and Hyperion collectively; ... Pages 52/53: ----------- ARTICLE VII. Miscellaeous ... 7.02 Independent Contractors. In making and performing this Agreement, Amiga and Amiga One Partners (read: Amiga and Eyetech and Hyperion) act and shall act at all times as independent contractors and nothing contained in this agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Amiga and the Amiga One Partners (read: Amiga and Eyetech and Hyperion). ... 7.10 Signatures by Facsimile. Any facsimile signature of any party hereto shall constitute a legal, valid and binding execution hereof by such party. ... 7.12 EFFECT The Agreement shall be binding upon and inure to the benefit of each party hereto, and their successors and assigns. Neither party shall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent. 7.13 Headings. The headings in this agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this agreement. Page 54: IN WITNESS WHEREOF, the parties, by there authorized representatives, have executed this Agreement. For Amiga Inc. By: Barry Jon Moss For Hyperion VOF By: Ben Hermanns For EYETECH GROUP LTD BY: Alan Redhouse

While I think the first paragraph of page 48 (what you refer to as grouping) and when the notation "party's" is used (two time, as far as I could see), seem to support your theory, I see lots of terms and notations contradicting it as well.

1) In the "RECITALS"-section on page 48 it is stated that AInc contracted with Eyetech; and a few lines below that it's stated that they contracted with Hyperion, too - but it is not stated that they contracted with the "Amiga One Partners".
It reads as if there were two seperate contracts and in my book this supports the "three party contract" interpretation.

2) In the last sentence of the "RECITALS"-section on page 48 the notation "parties" is used (as well as in the signature section) - which also supports the "three party contract" interpretation.

3) In the "DEFINITIONS"-section it reads: "Amiga One Partners" means Eyetech and Hyperion collectively.
As somone else already pointed out, this simply means that you can replace the term "Amiga One Partners" with "Eyetech and Hyperion" - also pointing in the direction of a three party contract.

4) In Article VII. - Miscellaeous - 7.02 Independant Contractors on pages 52/53 - it is expressively stated that "Amiga and Amiga One Partners (read: Amiga and Eyetech and Hyperion) act and shall act at all times as independent contractors and nothing contained in this agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Amiga and the Amiga One Partners (read: Amiga and Eyetech and Hyperion)." - I read this as if an "two party contract" is expressively not desired.

5) In the same Article in paragraph 7.10 - Signatures by Facsimile - it reads:
"Any facsimile signature of any party hereto shall constitute a legal, valid and binding execution hereof by such party."
If you now look at the signature section on page 54, you can find the notation "IN WITNESS WHEREOF, the parties, by there authorized representatives, have executed this Agreement." The companies and signatures following do not seem to be "grouped" in any way, which also implies a three party contract in my book.

6) If my understanding of English grammar is correct, the first paragraph of ths 2001 contract (what you refer to as grouping) can be called a "heding".
Now look at paragraph 7.13 - Headings:
"The headings in this agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this agreement."

I hope you can now understand, where our difficulties to accept your theory of an two party contact come from.
What I really find confusing is the usage of different notations for the plural of "party"...
Maybe it is due to language barrier - but in this case I would expect that someone with better English skills points us to the places where our understanding of the english language was wrong and explains it to us in a logical way so we can understand...

Last edited by Dandy on 23-Nov-2007 at 01:54 PM.
Last edited by Dandy on 23-Nov-2007 at 01:46 PM.
Last edited by Dandy on 23-Nov-2007 at 01:40 PM.

_________________
Ciao

Dandy
__________________________________________
If someone enjoys marching to military music, then I already despise him.
He got his brain accidently - the bone marrow in his back would have been sufficient for him!
(Albert Einstein)

@Dandy

Quote:

What I really find confusing is the usage of different notations for the plural of "party"... Maybe it is due to language barrier - but in this case I would expect that someone with better English skills points us to the places where our understanding of the english language was wrong and explains it to us in a logical way so we can understand...

English is not my native language either (mine is French, from Belgium), but if I'm not wrong:
"party" is a singular,
"parties" is the plural of "party",
"partys" is not a proper English word, or a typo,
"party's" are two words where the " 's " makes a ownership link with another word in the sentence.

For example, when you read:
Quote:

... without the other party's prior written consent

You can read: "... without the prior written consent of the other party"


Note: Don't worry about your confusion. I can see that even some American people make mismatch here with words like "there" and "their", "where" and "were", ...

Note2: I think that color is disable for texts posted in amigaworld.net forums.

Last edited by AmigaPhil on 23-Nov-2007 at 07:31 PM.

@Dandy

Quote:

Hmmmmmm - while scrutinizing the 2001 contract once again, I found terms that seem to support your view the contract being a two party contract, as well as terms that support my and others view the contract being a three party contract.

There are parts of the 2001 agreement that apply to Hyperion, but not Eyetech. In this case, the name "Hyperion" is written.
There are parts of the agreement that apply to Eyetech, but not Hyperion. The name "Eyetech" is used then.
There are parts of the agreement that apply to Hyperion, and also apply to Eyetech. Thus the name "Amiga One Partners" (previously defined as "Hyperion and Eyetech") is written.

All in all, the liabilities of Hyperion and the liabilities of Eyetech (some of them are common to both Hyperion and Eyetech) are (more or less) clearly specified in the contract.

That's why I concluded in the discussion with Tigger that:
Quote:

In the end, whether we call it a two parties contract or a three parties contract, the liabilities of the companies involved are the same.

@Dandy

Quote:

Dandy wrote: @Tigger Quote: Tigger wrote: @AmigaPhil ... the issue is the contract is a two party contract. ... Hmmmmmm - while scrutinizing the 2001 contract once again, I found terms that seem to support your view the contract being a two party contract, as well as terms that support my and others view the contract being a three party contract. I quoted the relevant parts and highlighted the important terms: 2001 Contract Quote: 2001 contract states: on page 48: (OEM) LICENSE AND SOFTWARE DEVELOPMENT AGREEMENT This agreement (this "Agreement") is made ... by and between: 1. Amiga Inc. (hereafter: "Amiga"), ... and 2. Hyperion VOF (hereafter: "Hyperion"), ... 3. Eytech Group Ltd. (hereafter: "Eyetech") RECITALS ... WHEREAS Amiga has decided to contract with Eyetech for the development of the Amiga One product; ... WHEREAS Amiga has decided to contract with Hyperion for the development of Amiga OS 4.0; NOW,THEREFORE, for good and valuable consideration, receipt and sufficiantly of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: Article I. DEFINITIONS ... "Amiga One Partners" means Eyetech and Hyperion collectively; ... Pages 52/53: ----------- ARTICLE VII. Miscellaeous ... 7.02 Independent Contractors. In making and performing this Agreement, Amiga and Amiga One Partners (read: Amiga and Eyetech and Hyperion) act and shall act at all times as independent contractors and nothing contained in this agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Amiga and the Amiga One Partners (read: Amiga and Eyetech and Hyperion). ... 7.10 Signatures by Facsimile. Any facsimile signature of any party hereto shall constitute a legal, valid and binding execution hereof by such party. ... 7.12 EFFECT The Agreement shall be binding upon and inure to the benefit of each party hereto, and their successors and assigns. Neither party shall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent. 7.13 Headings. The headings in this agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this agreement. Page 54: IN WITNESS WHEREOF, the parties, by there authorized representatives, have executed this Agreement. For Amiga Inc. By: Barry Jon Moss For Hyperion VOF By: Ben Hermanns For EYETECH GROUP LTD BY: Alan Redhouse While I think the first paragraph of page 48 (what you refer to as grouping) and when the notation "party's" is used (two time, as far as I could see), seem to support your theory, I see lots of terms and notations contradicting it as well. 1) In the "RECITALS"-section on page 48 it is stated that AInc contracted with Eyetech; and a few lines below that it's stated that they contracted with Hyperion, too - but it is not stated that they contracted with the "Amiga One Partners". It reads as if there were two seperate contracts and in my book this supports the "three party contract" interpretation. 2) In the last sentence of the "RECITALS"-section on page 48 the notation "parties" is used (as well as in the signature section) - which also supports the "three party contract" interpretation. 3) In the "DEFINITIONS"-section it reads: "Amiga One Partners" means Eyetech and Hyperion collectively. As somone else already pointed out, this simply means that you can replace the term "Amiga One Partners" with "Eyetech and Hyperion" - also pointing in the direction of a three party contract. 4) In Article VII. - Miscellaeous - 7.02 Independant Contractors on pages 52/53 - it is expressively stated that "Amiga and Amiga One Partners (read: Amiga and Eyetech and Hyperion) act and shall act at all times as independent contractors and nothing contained in this agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between Amiga and the Amiga One Partners (read: Amiga and Eyetech and Hyperion)." - I read this as if an "two party contract" is expressively not desired. 5) In the same Article in paragraph 7.10 - Signatures by Facsimile - it reads: "Any facsimile signature of any party hereto shall constitute a legal, valid and binding execution hereof by such party." If you now look at the signature section on page 54, you can find the notation "IN WITNESS WHEREOF, the parties, by there authorized representatives, have executed this Agreement." The companies and signatures following do not seem to be "grouped" in any way, which also implies a three party contract in my book. 6) If my understanding of English grammar is correct, the first paragraph of ths 2001 contract (what you refer to as grouping) can be called a "heding". Now look at paragraph 7.13 - Headings: "The headings in this agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this agreement." I hope you can now understand, where our difficulties to accept your theory of an two party contact come from. What I really find confusing is the usage of different notations for the plural of "party"... Maybe it is due to language barrier - but in this case I would expect that someone with better English skills points us to the places where our understanding of the english language was wrong and explains it to us in a logical way so we can understand...

Here's Hyperion kicking AI and Itec where it counts as the go for the "Slam Dunk"!!!

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