Covenant to Downstream Recipients
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue Downstream Recipients of Novell and its Subsidiaries for infringement under Necessary Claims of Microsoft on account of such Downstream Recipients’ use of Moonlight Implementations to the extent originally provided by Novell during the Term and, if applicable, the Extension or Post-Extension Period, but only to the extent such Moonlight Implementations are used to provide Plug-In Functionality. The foregoing covenants shall survive termination of the Agreement, but only as to specific copies of such Moonlight Implementations distributed during the Term, and if applicable, the Extension or Post-Extension Period.
Microsoft reserves the right to update (including discontinue) the foregoing covenant pursuant to the terms of the Moonlight for Linux Collaboration Agreement between Novell and Microsoft that was publicly announced on September 5, 2007 (the “Agreement”); however, the foregoing covenant will continue as to specific copies of Moonlight Implementations distributed by Novell before any such update.
All rights not expressly granted by the foregoing covenant are reserved by Microsoft. No additional rights (including any implied licenses, covenants, releases, or other rights) are granted by implication, estoppel, or otherwise, including no rights under any additional patents of Microsoft and no rights to any technology not included in such Moonlight Implementations, even if additional related or enabling technologies (e.g., operating systems, web browsers, or other platform technologies) are required to use the Moonlight Implementations. Microsoft is not bound by, nor grants any rights under, any third party licenses with respect to the Moonlight Implementation (e.g., any versions of the General Public License).
Definitions – Covenant to Downstream Recipients
“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 Novell, Inc. or Microsoft Corporation, as the case may be, but the entity will 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 the entity is, now or hereafter, owned or controlled, directly or indirectly, by Novell, Inc. or Microsoft Corporation, as the case may be, but the entity will be considered a Subsidiary only so long as such ownership or control exists.
“Downstream Recipient” means an entity or individual that uses for its intended purpose a Moonlight Implementation obtained directly from Novell or through an Intermediate Recipient. An entity or individual is not a Downstream Recipient when such entity or individual resells, licenses, supplies, distributes or otherwise makes available to third parties the Moonlight Implementation. For avoidance of doubt, an entity or individual cannot qualify both as a Downstream Recipient and an Intermediate Recipient for use of the same copy of a Moonlight Implementation.
“Necessary Claims” means claims of a patent or patent application that (i) Microsoft Corporation or any of its Subsidiaries now or hereafter owns, controls, or otherwise has the right to license or covenant without the payment of any royalty or other amounts to any unaffiliated third party, and (ii) are necessarily infringed by an implementation of the Silverlight Specification. For purposes of the foregoing, a claim is “necessarily infringed” only when there is no commercially reasonable non-infringing alternative to such implementation that also implements the Silverlight Specification. “Necessary Claims” do not include any claims: (1) other than those set forth above, even if contained in the same patent or patent application as those set forth above; (2) covering any enabling technologies (e.g., operating systems, web browsers or other platform technologies) that may be necessary to make or use any Implementation; or (3) covering the implementation of other published specifications that may be referenced in the Silverlight Specification.
“Moonlight Implementation” means only those specific portions of Moonlight 1.0 or Moonlight 2 that run only as a plug-in to a browser on a Personal Computer and are not licensed under GPLv3 or a Similar License.
“Term” The term of this Agreement will commence on the Effective Date and continue through September 1, 2011, unless terminated earlier under the Agreement.
“Extension” means the period commencing on the day after the Termination Date and ending on the second anniversary of the Termination Date.
“Post-Extension Period” means the period after the end of the Extension.
“Plug-In Functionality” means the web browser plug-in functionality for receiving and rendering, in such web browser running on a Personal Computer, media and interactive web-based applications compatible with Silverlight 1.0 or Silverlight 2.
"Intermediate Recipients" means resellers, recipients, and distributors to the extent they are authorized (directly or indirectly) by Novell or its Subsidiaries to resell, license, supply, distribute or otherwise make available Moonlight Implementations (whether the resale, licensing, supplying, making available, or distribution is on a stand-alone basis, or on an OEM basis as bundled with hardware or other software of the reseller or distributor, or otherwise, so long as it is not bundled with a Linux operating system other than Novell-branded operating system software), except for resellers, recipients, or distributors who are in the business of offering their own branded operating system software.
"Silverlight Specification" means a specification relevant to developing Moonlight 1.0 or Moonlight 2 (as the case may be) to be compatible with Silverlight 1.0 or Silverlight 2, respectively, and any updates thereto identified as such and delivered to Novell pursuant to the Agreement.
"Moonlight 1.0" means only those portions of any web browser software plug-in developed by or on behalf of Novell for receiving and rendering, in the web browser, media and interactive web-based applications (including only such infrastructure and source code libraries that are necessary to enable the foregoing portions of the web browser software plug-in) which (a) when used with Media Pack 1.0, comply with and implement the Silverlight Specification for Silverlight 1.0 and pass 90% (or such lesser amount as the Microsoft and Novell mutually agree) of the Moonlight 1.0 Test Suite; and (b) are solely for use on a Personal Computer running a Covered Operating System. Notwithstanding the above, Moonlight 1.0 does not include any codec or DRM functionality or the functionality of Media Pack 1.0 or Media Pack 2, or any application platform interfaces (APIs) other than those implemented and exposed by Silverlight 1.0 for use with other applications.
"Moonlight 2" means only those portions of any web browser software plug-in developed by or on behalf of Novell for receiving and rendering, in the web browser, media and interactive web-based applications (including only such infrastructure and source code libraries that are necessary to enable the foregoing portions of the web browser software plug-in) which (a) when used with Media Pack 2, comply with and implement the Silverlight Specification for Silverlight 2 and pass 90% (or such lesser amount as Novell and Microsoft mutually agree) of the Moonlight 2 Test Suite; and (b) are solely for use on a Personal Computer running a Covered Operating System. Notwithstanding the above, Moonlight 2 does not include any codec or DRM functionality or the functionality of Media Pack 1.0 or Media Pack 2, or any application platform interfaces (APIs) other than those implemented and exposed by Silverlight 2 for use with other applications.
"Personal Computer" means a general purpose computer (including a laptop, tablet PC, desktop or ultra mobile personal computer) that is (i) designed and marketed for operating a wide variety of productivity, entertainment and/or other software applications from unrelated third parties; and (ii) runs a general purpose consumer operating system (such as Microsoft Windows XP or Microsoft Windows Vista, Apple Macintosh OS X, SUSE Linux, Solaris, OpenBSD, FreeBSD etc.). Personal Computers do not include personal digital assistants (PDAs), Pocket PCs, or mobile telephones. Personal Computers do not include personal digital assistants (PDAs), Pocket PCs, or mobile telephones.
"GPLv3 or a Similar License" means the GNU General Public License version 3, the GNU Affero General Public License version 3, the GNU Lesser General Public License version 3, any equivalents to the foregoing, or any other license or contract that includes terms similar to the terms in paragraphs 6 or 7 of Section 11 of the GNU General Public License version 3.
"Effective Date" means September 4, 2007
"Termination Date" means the effective date of expiration or termination of the Agreement
"Silverlight 1.0" means the commercial release version of Microsoft Silverlight 1.0.
"Silverlight 2" means the commercial release version of Microsoft Silverlight 2.