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      /  Amiga Inc v. Hyperion VOF (update 22 Feb 2008)
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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 19:23:16
#261 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Spectre660

Quote:

Spectre660 wrote:
@Tigger

Quote:
First of all I answered this already in #229, they bought the contract from Amino.


The problem everyone is now seeing is that you can't "Buy" a contract like this
without an assignment of the rights covered by the contract.


Actually you can buy a contact like this no problem at all. Ownership of the contract isnt in any way prohibited by the clause about assigning rights.

Quote:

Hyperion claims the 2003 contract was their assignment to ITEC but the consent of Amiga(W) and Eyetech were not given thus the assignment is not valid.


First of all Hyperion can't make that claim, AI(W) could make that claim, Eyetech could make that claim, Hyperion can't make claims for other companies. If Eyetech or AI(W) want to show up and complain about reassignment, that would be fine, but a company that signed the contract can't make that complaint.

Quote:

ITec says it was a sale of Hyperions rights to ITEC outside of the 2001 agreement as the 2001 contract was abondoned by both Amiga(W) and Hyperion leaving Hyperion as the party with the rights to sell OS4.0 (Not the 2001 Contract)in 2003.


Actually thats not what Itec says. Itec says they bought the OS under the 2003 contract without being AI(W)'s successor for the 2001 contract. KMOS says that once the buyback was carried out, that basically the 2001 contract was abandoned because it doesnt make much sense with Itec and then KMOS owning the OS.

Quote:

Amiga(D) said the 2003 contract was an assignment of the 2001 agreement but now are trying to change their story to follow the ITEC one.

The documents have always supported that version of the story and the judge in Washingon believed the story enough to NOT join Itec to the case in Washington, which would further support that version.

Quote:

Amiga(W) have not said anthing yet but will have to say something during mediation if they go down that road.What ever they claim will be used against
both Amiga(D) and ITEC by Hyperion.


More likely that evidence will be used against Hyperion, so far Hyperions documents in the case have hurt there case not helped in.
-Tig

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 19:39:22
#262 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@kirka

Quote:

kirka wrote:
@Tigger

Thanks for the information. I was looking for the bill of sale.

How come there is no date where Gary and Bill signed on the same page? That page is not notarized. Is this typical?

It looks like the notary was only for Bill signing a different document or later on. Is this correct?



The line before the signatures says that they are both signing as of the date above which is August 30, 2004, so that is the date of sale, this is fairly common on a US contract, if you notice, there is no date by the signatures on the 2001 or 2003 contact either. The contract may actually have been notarized, its possible that the notary page is not included, or that this entire document (with the 3 other notarized pages) is a single document. It all occurred on August 30, 2004, so its likely that instead of there being no notarization as you are implying, there are actually 3 notarizations on it, Bill McEwen on the 30th of August got those 3 other documents notarized and the contract needs to be signed before that happens.
-Tig

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kirka 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 20:14:19
#263 ]
Member
Joined: 14-Jun-2004
Posts: 94
From: Boston, MA

@Tigger

The way I see the documents online, Gary's signature is not notarized. Do you agree?

Kirka

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 20:36:09
#264 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@kirka

Quote:

kirka wrote:
@Tigger

The way I see the documents online, Gary's signature is not notarized. Do you agree?



Either both are notarized or neither are notarized. It doesnt really matter. The Bill of sale had to occur for the transfer to occur, my guess is we are looking at one large document instead of 4 documents. Neither KMOS not Amino are arguing that this didnt occur, we have three notarized document that point out to this having occurred, we have Hyperion presenting this document (which is a key point everyone is glossing over) so I'm not sure why you care (or think it matters) whether the notary signed the page in question.
-Tig

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Spectre660 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 20:44:03
#265 ]
Elite Member
Joined: 4-Jun-2005
Posts: 3918
From: Unknown

@Tigger

Quote:
Quote:

Amiga(D) said the 2003 contract was an assignment of the 2001 agreement but now are trying to change their story to follow the ITEC one.



The documents have always supported that version of the story and the judge in Washingon believed the story enough to NOT join Itec to the case in Washington, which would further support that version.



He can twist with the best of them.
Someone please call the propaganda police.............

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damocles 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 20:55:29
#266 ]
Super Member
Joined: 22-Dec-2007
Posts: 1719
From: Unknown

@Spectre660

Quote:
Someone please call the propaganda police.............


You going to turn yourself in?

_________________
Dammy

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 21:14:10
#267 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Spectre660

Quote:

Spectre660 wrote:

Quote:

The documents have always supported that version of the story and the judge in Washingon believed the story enough to NOT join Itec to the case in Washington, which would further support that version.



He can twist with the best of them.
Someone please call the propaganda police.............


You seem to be the one spreading propaganda. Which of the official documents (not comments, actual legal documents we have been provided) do not suppor the theory that Itec was not just buying OS 4.0 from Hyperion and nothing else. The 2003 contract itself, the Kmos-Itec doc, and all the KMOS-Amino docs support this what actual legal documents can you point to that dont support this. And since Hyperion is providing the August 2004 documents, they obviously knew all about this, so its really hard in 2007/2008 to act like they are confused about especially given the letter to Ben from McEwen in 2004.
-Tig

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Spectre660 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 22:00:30
#268 ]
Elite Member
Joined: 4-Jun-2005
Posts: 3918
From: Unknown

@Tigger

Quote:
the judge in Washingon believed the story enough to NOT join Itec to the case in Washington


This is not what the Judges order states.
He ruled on the Language of the 2003 contract not bringing
ITEC into Wasington jurisdiction.
He leaves it open for Hyperion to bring suit against ITEC in another state making the same claims.

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 11-Feb-2008 22:23:18
#269 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Spectre660

Quote:

Spectre660 wrote:
@Tigger

Quote:
the judge in Washingon believed the story enough to NOT join Itec to the case in Washington


This is not what the Judges order states.
He ruled on the Language of the 2003 contract not bringing
ITEC into Wasington jurisdiction.
He leaves it open for Hyperion to bring suit against ITEC in another state making the same claims.



I'm sorry it is what the judge said. The judge said that Itec was not subject to the Jurisdictional or Venue provisions of the 2001 contract according to the 2003 contract. They can claim whatever they want in another court, but a federal judge has decided that at least some of the provisions of 2001 contract do not apply to Itec, so proving that he was wrong and that those should apply, or that he was right but other provisions do apply is a pretty tall mountain to climb.
-Tig

Last edited by Tigger on 11-Feb-2008 at 10:25 PM.

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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 13:18:35
#270 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@Dandy

Quote:

Dandy wrote:
@Tigger

The question for me is if this sale has become final at all, as contractually required signatures on the sales contract are missing (or atleast one signature is missing).



AInc sold it, KMOS bought it, we have signatures from both companies, I'm not sure who exactly you think is the missing signature.



You mean AInc (W) sold it to KMOS?

Where is ITEC in your equation?
Aren't they the ones who bought it from Ainc(W)?

Quote:

Tigger wrote:

Quote:


I don't think I have any evidence, I just think that so far I didn't see any evidence that the sale ever became final...



The two companies involved sign the contract and money/stock changes hands, thats all you need to do to carry this out. We've seen the sign and notarized contract and the notarized documents moving the trademarks, IP etc to KMOS, what exactly else do you need to see?



Just have a quick look at the 2001 contract, paragraph 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 sall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent."

Do you know now what I'm missing?

Quote:

Tigger wrote:

Quote:


Where it is more than questionable for me if KMOS/AInc(D) had a right to cancel the contract at all...



They have the right to cancel it, I think if Hyperion had been clever they could have held out cancellation for a long time by opposing it, but by no opposing the cancellation they lost alot of there ability to fight this.



Hmmmmm - in my book KMOS/AInc(D) can only have the right to cancel the 2001 contract, if the transfer from AMINO/AInc(W) to ITEC, as well as the transfer from ITEC to KMOS, was legal.

Son don't let us move around in circles - just lets wait and see if the transfer from AMINO/AInc(W) to ITEC was legal at all.

If it was, then lets wait and see if the transfer from ITEC to KMOS, was legal as well.

Only if these two preconditions are satisfied, AInc(D) might have a right to cancel the 2001 contract.

_________________
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Dandy
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He got his brain accidently - the bone marrow in his back would have been sufficient for him!
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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 13:26:14
#271 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:

...

Quote:

Dandy wrote:
...
I'm still waiting for an answer to my last question...




First of all I answered this already in #229, they bought the contract from Amino...



Maybe it escaped your attention - but I was talking to Damocles - I'm waiting for his answer...

Last edited by Dandy on 12-Feb-2008 at 02:43 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)

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 13:48:21
#272 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Dandy
Quote:

Quote:


AInc sold it, KMOS bought it, we have signatures from both companies, I'm not sure who exactly you think is the missing signature.



You mean AInc (W) sold it to KMOS?

Where is ITEC in your equation?
Aren't they the ones who bought it from Ainc(W)?



No, the contract was sold by Amino to KMOS on Aug 30, 2004.

Itec bought the OS from Hyperion on March 24, 2003, but we arent talking about the OS here, we are talking about the contract, and Itec never owned the contract.


Quote:

Quote:

Tigger wrote:

The two companies involved sign the contract and money/stock changes hands, thats all you need to do to carry this out. We've seen the sign and notarized contract and the notarized documents moving the trademarks, IP etc to KMOS, what exactly else do you need to see?



Just have a quick look at the 2001 contract, paragraph 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 sall assign or subcontract the whole or any part of this Agreement without the other party's prior written consent."

Do you know now what I'm missing?



Apparently you think that means that AI(W) can't sell the contract or that KMOS cant buy, neither are true, so I guess thats what you are missing.


Quote:


Hmmmmm - in my book KMOS/AInc(D) can only have the right to cancel the 2001 contract, if the transfer from AMINO/AInc(W) to ITEC, as well as the transfer from ITEC to KMOS, was legal.

Son don't let us move around in circles - just lets wait and see if the transfer from AMINO/AInc(W) to ITEC was legal at all.



There wasnt any such transfer, so we are going to have to wait a long time.

Quote:

If it was, then lets wait and see if the transfer from ITEC to KMOS, was legal as well.

Only if these two preconditions are satisfied, AInc(D) might have a right to cancel the 2001 contract.


First of all why exactly do you think the Itec - KMOS transfer wouldnt be legal? Itec bought the OS from Hyperion, they sold it to KMOS, Hyperion and Itec signed the first bill of sale, Itec and KMOS signed the second bill of sale, How can the Itec to KMOS sale be illegal in your opinion?
-Tig

Last edited by Tigger on 12-Feb-2008 at 01:51 PM.

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 13:54:36
#273 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Dandy

Quote:

Dandy wrote:

Maybe it escaped your attention - but I was talking to Damocles - I'm waiting for his answer...


Yeah, I know thats the hilarious part. You misread what Dammy wrote, I explain that you misread what Dammy wrote, and you still want Dammy personally to explain to you that you misread what he wrote because you still believe that KMOS got the contract from Itec instead of from Amiga Inc (Washington) ie Amino.
-Tig

Last edited by Tigger on 12-Feb-2008 at 01:57 PM.

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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 14:40:16
#274 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@Spectre660

...
Quote:


Hyperion claims the 2003 contract was their assignment to ITEC but the consent of Amiga(W) and Eyetech were not given thus the assignment is not valid.



First of all Hyperion can't make that claim, AI(W) could make that claim, Eyetech could make that claim, Hyperion can't make claims for other companies. If Eyetech or AI(W) want to show up and complain about reassignment, that would be fine, but a company that signed the contract can't make that complaint.



Just for clarification:
What does make the contract "not valid" - the fact that signatures of involved parties are missing, or does it depend on who claims that signatures are missing?

Do missing signatures mysteriously appear on the contract and make it valid, if the right party claims they're missing?

Don't missing signatures in itself make the contract invalid?

Quote:

Tigger wrote:

...
KMOS says that once the buyback was carried out,



I'm still having a semantical problem here:
How could KMOS buy OS4 back - they never owned it before, AFAIK...

Quote:

Tigger wrote:

that basically the 2001 contract was abandoned because it doesnt make much sense with Itec and then KMOS owning the OS.
...



If I for a moment assume that this is right, I really wonder why Hyperion let the developers continue to work, if the contract was abandoned.

Who abandoned the contact - or do you say it was automatically abandoned, because it didn't make sense with ITEC.

If so, I'm missing the part in the contract saying that if the contract doesn't make sense with ITEC, it is automatically abandoned.
Where does the contract say so?

(I would expect Hyperion's acceptance to be required for the contract to be abandoned.)

_________________
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Dandy
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He got his brain accidently - the bone marrow in his back would have been sufficient for him!
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COBRA 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 15:05:46
#275 ]
Super Member
Joined: 26-Apr-2004
Posts: 1809
From: Auckland, New Zealand

@Dandy

Quote:
If I for a moment assume that this is right, I really wonder why Hyperion let the developers continue to work, if the contract was abandoned.

Who abandoned the contact - or do you say it was automatically abandoned, because it didn't make sense with ITEC.


Remember that AD started the whole lawsuit based on them cancelling the 2001 contract, and if you read their original submissions when they were going for a preliminary injunction and the transcript of the oral hearing, etc. even their lawyers made it clear that they're here because of Hyperion not living up to the 2001 contract (in their opinion). You don't cancel a contract in 2006 which you think was abandoned several years before, and likewise you don't expect a company to perform according to the contract if you think it was abandoned and superceded by another agreement. The contractictions between their latest and previous claims/actions are so strikingly obvious, it makes you wonder what their lawyers were thinking...

Last edited by COBRA on 12-Feb-2008 at 03:06 PM.

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Lou 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 15:19:27
#276 ]
Elite Member
Joined: 2-Nov-2004
Posts: 4169
From: Rhode Island

@Dandy

It's not worth debating it with them. They only see points to quasi-prove their side and ignore the counter-points that blow a whole in their theory.

We might as well argue who will win the world series in 3 years today, i.e. pointless.

Our (opposition included) opinions are meaningless. They are also already defined and won't be changed in these discussions. Nor will the outcome of the cases be changed courtesy of these discussions.

Here are the facts of the KMOS-Hyperion-Amino case:
KMOS cancels a contract that they claim not to be a party to.
KMOS sues Hyperion for trademark infringement and wants an OS they never paid in full for, nor entitled to and want to stop Hyperion from sub-contracting a distributer (ACUBE) for selling OS4 when the classic version is available.
Judge decides Hyperion can continue business as usual until more facts can be determined.
Judge joins Amino and allows Amino and Hyperion to undergo "mediation". This alludes to the judge agreeing that transfer of ownership of the 2001 contract to KMOS was never properly done.
Judge decides that ITEC doesn't need to be here as the original claims of KMOS have nothing to do with ITEC.

Now we twidle our thumbs for mediation between Amino and Hyperion to conclude...

Meanwhile in New York, Hyperion now has documents to prove ITEC never acquired any Amino i.p. so Hyperion can show that they were led to believe ITEC was to be the Amino successor, but ITEC acted improperly and never followed through. I think they should return any money ITEC sent them (with interest, ofcourse) and continue do what they will with OS4. This ofcourse means that no one has paid for OS4 and that it is still owned by Hyperion. Now we twidle our thumbs until after April 1st to find out more...

Now that everything has been summed up, can we resume thumb-twidling and stop the FUD?

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CodeSmith 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 17:56:08
#277 ]
Elite Member
Joined: 8-Mar-2003
Posts: 3045
From: USA

@Lou

Thanks for the summary, this whole thing is giving me a headache so I'd stopped following who'd said what and who'd lied about what.

What's happening on April 1? closure, or just one more step in the endless process?

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woon 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 18:36:54
#278 ]
Member
Joined: 2-Jan-2005
Posts: 31
From: Nord de la France

@CodeSmith

This summary is a little biased, to make A Inc (KMOS) look like the bad one, while hyperion's actions are presented as if they were innocent.

No one is innocent, IMO.

A+
Woon

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Lou 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 18:47:16
#279 ]
Elite Member
Joined: 2-Nov-2004
Posts: 4169
From: Rhode Island

@woon

Quote:

woon wrote:
@CodeSmith

This summary is a little biased, to make A Inc (KMOS) look like the bad one, while hyperion's actions are presented as if they were innocent.

No one is innocent, IMO.

A+
Woon


I agree no one is innocent, but I'll side with the lesser of 2 evils...

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Rob 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 12-Feb-2008 19:19:29
#280 ]
Elite Member
Joined: 20-Mar-2003
Posts: 6344
From: S.Wales

@Tigger

Quote:
Actually thats not what Itec says. Itec says they bought the OS under the 2003 contract without being AI(W)'s successor for the 2001 contract. KMOS says that once the buyback was carried out, that basically the 2001 contract was abandoned because it doesnt make much sense with Itec and then KMOS owning the OS.


So the buyback/buy in was executed by Amiga Inc (W) in 2003 and the 2001 contract was abandoned (in 2003) when they sold the OS, rights and title to ITEC.

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