gnu-misc-discuss
[Top][All Lists]
Advanced

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: Eben wonders ("no comfort at all")


From: Alexander Terekhov
Subject: Re: Eben wonders ("no comfort at all")
Date: Fri, 03 Nov 2006 16:18:55 +0100

http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx

---------
Patent Cooperation Agreement - Microsoft & Novell Interoperability
Collaboration

Published: November 2, 2006 | Updated: November 2, 2006

On This Page

Covenant to Customers   
Definitions – Covenant to Customers
Links   

Covenant to Customers

Microsoft, on behalf of itself and its Subsidiaries (collectively
“Microsoft”), hereby covenants not to sue Novell’s Customers and
Novell’s Subsidiaries’ Customers for infringement under Covered Patents
of Microsoft on account of a such Customers’ use of specific copies of a
Covered Product as distributed by Novell or its Subsidiaries
(collectively “Novell”) for which Novell has received Revenue (directly
or indirectly) for such specific copies; provided the foregoing covenant
is limited to use by a Customer of Novell (i) of such specific copies
that are authorized by Novell in consideration for such Revenue, and
(ii) within the scope authorized by Novell in consideration for such
Revenue. For the avoidance of doubt, the “received Revenue” requirement
above is deemed satisfied with respect to such Customer receiving from
Novell a free update to a component of a specific copy of a Covered
Product for which Novell has previously received Revenue, but is not
satisfied with respect to such Customer receiving a free upgrade or a
new version of such specific copy unless Novell has received Revenue for
such upgrade or new version.

For specific copies of Covered Products distributed by Novel for Revenue
before the end of the Term, the foregoing covenant shall apply as to all
Covered Patents, including Captured Patents. For specific copies of
Covered Products distributed by Novell for Revenue after the end of the
Term, the foregoing covenant shall apply only as to Captured Patents.

Also, the foregoing covenant will apply to customers' and developers'
use of copies of Covered Products distributed by Novell that are in
development (including, without limitation, work in process; trial,
alpha, beta and release candidate versions; and other versions of
products intended for but not yet generally released for Revenue on a
commercial basis), even if Novell does not receive Revenue in connection
therewith, provided that such copies are solely provided for
development, testing or evaluation purposes and any support thereof, if
any, continues for no longer than one-hundred eighty (180) days from
distribution. In any case, the covenant granted pursuant to this
paragraph shall expire as to such customers and developers One-Hundred
Eighty (180) days from distribution to such covered customers and
developers.

Microsoft reserves the right to update (including discontinue) the
foregoing covenant pursuant to the terms of the Patent Cooperation
Agreement between Novell and Microsoft that was publicly announced on
November 2, 2006; however, the covenant will continue as to specific
copies of Covered Products distributed by Microsoft for Revenue before
the end of the Term.

Definitions – Covenant to Customers

“Captured Patents” means Covered Patents entitled, in whole or in part,
to an effective filing date on or before January 1, 2001 (i) which a
granting party or any of its Subsidiaries as the Effective Date now or
hereafter during the Term owns or controls, or (ii) under which (and to
the extent to which) a granting party or any of its Subsidiaries now or
hereafter during the Term has the ability or right to grant a covenant
not to sue or other freedom from suit to the other party or any of the
other party’s Subsidiaries.

“Covered Products” of a Party means all products and services sold,
licensed, supplied, distributed or otherwise made available by such
Party except for Foundry Products, Clone Products and Other Excluded
Products (collectively, “Excluded Products”).

“Covered Patents” means Patents entitled, in whole or in part, to an
effective filing date on or before January 1, 2012, (i) which a granting
party or any of its Subsidiaries now or hereafter during the Term owns
or controls, or (ii) under which (and to the extent to which) a granting
party or any of its Subsidiaries now or hereafter during the Term has
the ability or right to grant a release, covenant not to sue or other
freedom from suit. Covered Patents do not include Extendible Third Party
Patents.

“Covenanted Customers” means an enterprise or individual that utilizes a
specific copy of a Covered Product for its intended purpose as
authorized by a Party in consideration for Revenue (directly or
indirectly) to such Party. Enterprises or individuals are not Customers
when they (1) resell, license, supply, distribute or otherwise make
available to third parties additional copies of the specific cop(ies) of
a Covered Product they otherwise utilize as a Customer; or (2) resell,
license, supply, or distribute the output of SDKs or embedded developer
kits they utilize as a Customer. For avoidance of doubt, an enterprise
or individual cannot qualify both as a Customer and Distributor for use
of the same copy of a Covered Product.

“Party” means either Microsoft or Novell and their respective
Subsidiaries.

“Revenue” means any consideration to a Party that is reasonably
attributable to Covered Products. Revenue includes without limitation
consideration for any (i) sale or license of Covered Products or the
sale or license of the services of Covered Products, (ii) warranties,
indemnification or updates for Covered Products, (iii) maintenance,
upgrades, upgrade protection, service, premium service packages,
subscription, consulting, installation and support contracts for Covered
Products, (iv) user or device access rights to Covered Products, and (v)
hosting by a Party of Covered Products for the benefit of third parties.

“Subsidiary” means any entity (a) more than fifty percent (50%) of whose
outstanding shares or securities representing the right to vote for the
election of directors or other managing authority are, now or hereafter,
owned or controlled, directly or indirectly, by a party, but such entity
shall be considered a Subsidiary only so long as such ownership or
control exists; or (b) which does not have outstanding shares or
securities, as may be the case in a partnership, joint venture or
unincorporated association, but more than fifty percent (50%) of whose
ownership interest representing the right to make the decisions for such
entity is, now or hereafter, owned or controlled, directly or
indirectly, by a party, but such entity shall be considered a Subsidiary
only so long as such ownership or control exists.

“Term” means the period beginning on the Effective Date and ending on
January 1, 2012, unless terminated earlier. 
---------

regards,
alexander.


reply via email to

[Prev in Thread] Current Thread [Next in Thread]