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      /  Amiga Inc v. Hyperion VOF (update 22 Feb 2008)
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COBRA 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 9:42:47
#341 ]
Super Member
Joined: 26-Apr-2004
Posts: 1809
From: Auckland, New Zealand

@Tigger

Quote:
This joint press release is the 2004 agreement.


First of this press release does not say there is a new agreement between the companies. It says Hyperion is looking forward to exploring new business opportunities with KMOS, and that KMOS wants to honor the 2001 agreement. This does not mean that the 2001 contract does not have to be transferred to KMOS, or a new contract does not have to be drafted, if they want to abandon the 2001 agreement. And in fact this press release you point to opposes AD's recent claims as it clearly says that they want to honor the 2001 agreement, instead of abandoning it. AInc's problem is that the 2001 agreement is a legally binding document, with terms and conditions, one of them being that it cannot be transferred without the signatures of all parties that they agree to the transfer. So they either say they acquired the 2001 contract with the written permission of all parties, in which case they have the right to request Hyperion to perform according to it, and cancel it, or they have not acquired the 2001 contract, consider it abandoned, and in this case they can't ask Hyperion to perform under the contract, and they don't have the power to cancel it either. They can't have it both ways.

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pixie 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 11:12:15
#342 ]
Elite Member
Joined: 10-Mar-2003
Posts: 2662
From: Figueira da Foz - Portugal

@COBRA

Quote:
tSo they either say they acquired the 2001 contract with the written permission of all parties, in which case they have the right to request Hyperion to perform according to it, and cancel it, or they have not acquired the 2001 contract, consider it abandoned, and in this case they can't ask Hyperion to perform under the contract, and they don't have the power to cancel it either. They can't have it both ways.


Wanna bet? Surely Tigger will find a way!

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damocles 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 12:23:48
#343 ]
Super Member
Joined: 22-Dec-2007
Posts: 1719
From: Unknown

@pixie

Quote:
@COBRA

Quote:
tSo they either say they acquired the 2001 contract with the written permission of all parties, in which case they have the right to request Hyperion to perform according to it, and cancel it, or they have not acquired the 2001 contract, consider it abandoned, and in this case they can't ask Hyperion to perform under the contract, and they don't have the power to cancel it either. They can't have it both ways.


Wanna bet? Surely Tigger will find a way!


Doesn't the 2004 contract have the same 30 day notice clause as 2001 had?

Dammy

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TheMagicM 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 14:02:19
#344 ]
Member
Joined: 1-Oct-2003
Posts: 64
From: Unknown

@Tigger


How is porting AROS to EFIKA going?

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 15:41:07
#345 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@TheMagicM

Quote:

TheMagicM wrote:
@Tigger


How is porting AROS to EFIKA going?


It would be doing better if I wasnt living here at work. 70 hour weeks is not a good time for side projects. AROS for Efika currently has a memory leak and a dropped packet issue with the Ethernet, though with the fix I just wrote for the PQII driver for ethernet on the Apache, I think I may have a similar solution for the Efika issue.
-Tig

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 15:44:59
#346 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@COBRA

I'm not going to quote you, I'm just going to answer you.

You dont have to be a party of a contract, to buy a contract, after you buy a contract, you dont have to become a party to it. KMOS owns the contract, they arent a party of the contract, its that simple. In actuality since they owned the contract they pretty much could have cancelled it, instead the cancelled it according to the rules of cancellation on the contract which is in line with the we'll treat Hyperion according to the 2001 contract.
-Tig

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COBRA 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 17:51:29
#347 ]
Super Member
Joined: 26-Apr-2004
Posts: 1809
From: Auckland, New Zealand

@Tigger

Quote:
You dont have to be a party of a contract, to buy a contract, after you buy a contract, you dont have to become a party to it. KMOS owns the contract, they arent a party of the contract, its that simple. In actuality since they owned the contract they pretty much could have cancelled it, instead the cancelled it according to the rules of cancellation on the contract which is in line with the we'll treat Hyperion according to the 2001 contract.


If it worked like that, there wouldn't be a point in drafting contracts, if a party could just sell your contract to another company without following the rules set out in it, and that new owner could cancel it just like that (e.g. you just said they could have cancelled it even without honoring the rules of cancelleation), why would people bother to draft contracts anyway?

And still you have not explained why, if KMOS thought the 2001 contract was abandoned long ago, why are they cancelling it in 2006? I asked it several times now and you still did not answer, and the reason you haven't is because you can't. You know very well how strikingly obvious it is that they're trying to change the story now to help solve their problem of the lack of transfer of the 2001 contract and the inconsitency of their claims with the Itec case.

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COBRA 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 17:52:11
#348 ]
Super Member
Joined: 26-Apr-2004
Posts: 1809
From: Auckland, New Zealand

@damocles

Quote:
Doesn't the 2004 contract have the same 30 day notice clause as 2001 had?


As Tigger also said, there is no 2004 contract. At least we haven't seen one yet...

Last edited by COBRA on 17-Feb-2008 at 05:52 PM.

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TheMagicM 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 17-Feb-2008 19:37:04
#349 ]
Member
Joined: 1-Oct-2003
Posts: 64
From: Unknown

@Tigger

How far along is it? Does it boot into AROS or ? Interesting project...

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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 8:15:03
#350 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@COBRA

...
If you read document 35 attachment D, I think you have your answer.
...



Hmmmm - while I can access PDF document #35, I seem to be unable to access its attachments at http://news.justia.com/cases/featured/washington/wawdce/2:2007cv00631/143245/

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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 18-Feb-2008 8:38:51
#351 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@Dandy

...
As I said before (several times) AI owned the whole OS, they let Hyperion use it to create an improvement (4.0), they then buyback the whole OS by acquiring Hyperions pieces. . It doesnt really mean what you seem to be implying it means, this is from Wikipedia

"A buyout is an investment transaction by which an entire company or a controlling part of the stock of a company is sold. A firm "buys out" a company to take control of it. A buyout can take the form of a leveraged buyout, a venture capital buyout ("taking it private") or a management buyout.

The term may apply more generally to the purchase by one party of all of the rights of another party with respect to an ongoing transaction between the two. For example, an employer may buy out an employee's contract by making a single prepayment, so as to have no ongoing obligation to employ the person. A landlord may buy out the remainder of a tenant's lease, effectively paying them to vacate. Contracts may have an explicit buyout provision setting forth the terms or price. In the alternative the matter may be negotiated by the parties. If the entire operation is not purchase, the remainder is referred to as a stub."

First line of the second paragraph is basically what happened here. They both owned the OS, now AI owns the OS, it was a buyout, it even says that contracts may have explicit buyout provisions (as this one did) setting terms (6 months from completion) and price ($25000).
-Tig


First af all thanks for taking the time explaining this to me.
So you say its a buy-out - not an buyback.

Or does "buy-out" basically mean the same as "buyback" in the English language?

Last edited by Dandy on 19-Feb-2008 at 06:29 AM.

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Dandy
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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!
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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 8:50:39
#352 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@COBRA

...
Yes it does Cobra. This joint press release is the 2004 agreement.
...



Now it's starting to get ridiculous, if you are trying to sell a "press release" as a legally binding "agreement" to us...

_________________
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!
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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 9:59:47
#353 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@Dandy

...
The problem is this, Hyperion needs to tell someone when they think the 6 month clock is starting, they didnt (or at least as far as the court as been shown they didnt), so trying to manufacture a date now, it needs to be abundantly clear that it had occurred.



Didn't they receive an OS4 CD back then - as mentioned a few postings ago?
For me this is evidence enough that they were informed about the release and shipping of OS4 - and maybe this evidence is even sufficiant for the judge.

Quote:

Tigger wrote:

1) Did the software meet the requirements of the 2001 contract? No



To be fair we should mention that the relevant hardware didn't meet the requirements of the 2001 contract, either.

Quote:

Tigger wrote:

2) Did Hyperion pay the developers 60 days after this 2004 date? No



What "2004 date" are you referring to?
Why do you think Hyperion had to pay the devs 60 days after this mysterious date?

Quote:

Tigger wrote:

3) Did Hyperion announce they were done in 2004? No



Where in which contract/agreement is it stated that they had to "announce they were done" - given that they obviously sent an OS4 CD to Amiga and given that it was in the news of all Amiga related media?

Quote:

Tigger wrote:

4) Did Hyperion tell AI they were done or request the missing $250? No



Naahhhh - c'mon - if there is a deal to sell something for the price x, then I'd expect the buying party to pay the complete agreed upon amount of money first (except if there is a special provision for that case in the contract/agreement - but there isn't), before they can get the goods they are buying.

If it's in the buyers interest to get the goods as fast as possible, then it must as well be his own interest to pay the appointed amount in full in order to get the goods as fast as possible.

I see no resposibility/reason for the seller at all to remind the buyer of its obligations.

Quote:

Tigger wrote:

Given the facts above, I dont think any judge will find that they were done in 2004 and that the time ran out and AI no longer had the opportunity to carry out the buyback.
...



With regard to the "six month period" I'd say that it's as well solely AInc's own responsibility to keep track of things and to act timely.

It certainly can't be Hyperions responsibility in the case at hand to remind AInc to complete their payments to avoid the "six month period" elapsing and (AInc) so loosing their rights to whatever - it's a business aftere all and not a Kindergarten...

Last edited by Dandy on 18-Feb-2008 at 10:01 AM.

_________________
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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Swoop 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 11:22:35
#354 ]
Elite Member
Joined: 20-Jun-2003
Posts: 2149
From: Long Riston, East Yorkshire

@Dandy

Quote:
Hmmmm - while I can access PDF document #35, I seem to be unable to access its attachments at http://news.justia.com/cases/featured/washington/wawdce/2:2007cv00631/143245/


Click on the 35 on the page you link to. Opposite the word Download is an acrobat logo with Download PDF. Under that are 6 links, one for the main doc and 5 for the attachments. Click on an attachment link and it takes you to that attachments download page,

_________________
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."

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 14:27:34
#355 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@TheMagicM

Oh yeah it boots. If I get rid of the memory leak I'll probably check it in and let others play while I fix the ethernet issue.
-Tig


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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 14:55:48
#356 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@COBRA

Quote:

COBRA wrote:
If it worked like that, there wouldn't be a point in drafting contracts, if a party could just sell your contract to another company without following the rules set out in it, and that new owner could cancel it just like that (e.g. you just said they could have cancelled it even without honoring the rules of cancelleation), why would people bother to draft contracts anyway?


That problem is with this contract, nothing else. There are no reprecussions for someone doing something that the contract doesnt allow. If I deliver software late to Boeing, we get a penalty, its in the contract. There are cancellation penalties, etc. There is no such think with this contract, thats the problem. You dont like how this contract is going, you cancel it, thats basically the only option, thats a poor contract, but its the one the three amigos signed.

Quote:

And still you have not explained why, if KMOS thought the 2001 contract was abandoned long ago, why are they cancelling it in 2006? I asked it several times now and you still did not answer, and the reason you haven't is because you can't. You know very well how strikingly obvious it is that they're trying to change the story now to help solve their problem of the lack of transfer of the 2001 contract and the inconsitency of their claims with the Itec case.


They arent changing the story very much, if you read the timeline I wrote in 2004, its alot like what we are hearing now, just now we have docs, so we know what happened and when it happened. And really you guys are focusing on the Amino->KMOS transfer and subsequent cancellation as if it matters alot in the case, and it doesnt. KMOS owns the trademarks, they are cancelling Hyperions right to use them, Hyperion has violated the contract which gave them the rights to use them, in fact Hyperion really hasnt argued the point, though thats what they should have been focusing on.
-Tig

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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 15:05:53
#357 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Dandy

Quote:

Dandy wrote:

Now it's starting to get ridiculous, if you are trying to sell a "press release" as a legally binding "agreement" to us...


No, Dandy, I am saying that this joint press release is the 2004 agreement that KMOS is talking about, I didnt say it was legally binding or any such thing, though this would not be the first time a joint press release as been used in a court of law.
-Tig

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abalaban 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 15:59:41
#358 ]
Super Member
Joined: 1-Oct-2004
Posts: 1105
From: France

@Tigger

Quote:
Oh yeah it boots. If I get rid of the memory leak I'll probably check it in and let others play while I fix the ethernet issue.


Yes that's how one deals when porting an OS reveal not to be as straight forward as it ought to be : one makes a pre-release and then extend the lousily self imposed deadline twice

Last edited by abalaban on 18-Feb-2008 at 04:00 PM.

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AOS 4.1 : I dream it, Hyperion did it !
Now dreaming AOS 4.2...
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Tigger 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 18-Feb-2008 16:11:56
#359 ]
Elite Member
Joined: 2-May-2003
Posts: 2097
From: Rocket City, USA

@Dandy

Quote:

Dandy wrote:

Didn't they receive an OS4 CD back then - as mentioned a few postings ago?
For me this is evidence enough that they were informed about the release and shipping of OS4 - and maybe this evidence is even sufficiant for the judge.


They didnt receive a CD, and the software shipped did not meet the requirements of Annex I.

Quote:


To be fair we should mention that the relevant hardware didn't meet the requirements of the 2001 contract, either.



Which isnt Aminos problem, if Hyperion was upset about the hardware they need to take it up with there partner, Eyetech.

Quote:

Quote:

Tigger wrote:

2) Did Hyperion pay the developers 60 days after this 2004 date? No



What "2004 date" are you referring to?
Why do you think Hyperion had to pay the devs 60 days after this mysterious date?

Hyperion now claims the OS was completed in 2004, thats the 2004 date I am referring to, several of the contracts we have seen with the developers say that Hyperion will pay them large sums 30 or 60 days from the completion of OS4, those people are on record as not being paid. So Hyperion claiming they were done enough that the 6 months started, but no done enough they had to pay people for completion of the OS, is a little strange, especially since they decided not to inform Amino that they were done enough for the 6 monts to start.

Quote:

Quote:

Tigger wrote:

3) Did Hyperion announce they were done in 2004? No



Where in which contract/agreement is it stated that they had to "announce they were done" - given that they obviously sent an OS4 CD to Amiga and given that it was in the news of all Amiga related media?


Well first of all they didnt send an OS4 cd, and common sense says they need to inform the other party that they 6 months had begun, understand they arent even claiming that the first release was them being done, but the second release (Dec 2004) was them being done, also given the backdated receipt implies Itec had in fact paid the missing $250, dont you think they should ask for the missing money?

Quote:

Quote:

Tigger wrote:

4) Did Hyperion tell AI they were done or request the missing $250? No



Naahhhh - c'mon - if there is a deal to sell something for the price x, then I'd expect the buying party to pay the complete agreed upon amount of money first (except if there is a special provision for that case in the contract/agreement - but there isn't), before they can get the goods they are buying.

If it's in the buyers interest to get the goods as fast as possible, then it must as well be his own interest to pay the appointed amount in full in order to get the goods as fast as possible.

I see no resposibility/reason for the seller at all to remind the buyer of its obligations.


If the seller sends a receipt that implies that the money has been paid in full, surely you dont expect the buyer to understand they are lying do you?


Quote:

Quote:

Tigger wrote:

Given the facts above, I dont think any judge will find that they were done in 2004 and that the time ran out and AI no longer had the opportunity to carry out the buyback.
...



With regard to the "six month period" I'd say that it's as well solely AInc's own responsibility to keep track of things and to act timely.

It certainly can't be Hyperions responsibility in the case at hand to remind AInc to complete their payments to avoid the "six month period" elapsing and (AInc) so loosing their rights to whatever - it's a business aftere all and not a Kindergarten...


This is such a wrong comment, I'm not sure how to respond. By your line of reasoning, Hyperion can claim that 6 months was over as of May 3, 2002 and that Itec didnt pay on time. You apparently dont believe they actually have to be done, to have informed anyone that they were done or to actually have done any code on the matter. We've shown that the software was not to Annex I level in 2004, they didnt ship in Dec of 2004 and say there were done, they did that in Dec of 2006, but they didnt do that in Dec of 2004. They didnt pay the contractors as if they were done, they didnt start working on 4.1 then, they didnt tell AI that the 6 month countdown had started, and really they should have. If someone doesnt pay us on time, we charge them interest, by your line of thinking I can apparently start charging them interest the day the contract is signed because you dont think I need to send them a bill or actually finish the work before I start charging interest.
-Tig

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Dandy 
Re: Amiga Inc v. Hyperion VOF (update 31 Jan 2008)
Posted on 19-Feb-2008 6:39:42
#360 ]
Elite Member
Joined: 24-Mar-2003
Posts: 3049
From: Cologne * Germany

@Tigger

Quote:

Tigger wrote:
@Dandy

Quote:

Dandy wrote:

Now it's starting to get ridiculous, if you are trying to sell a "press release" as a legally binding "agreement" to us...



No, Dandy, I am saying that this joint press release is the 2004 agreement ...



Muahahahahahahah...



_________________
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!
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