Covenant to End Users of Moonlight 3 and 4
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue End Users for infringement under Necessary Claims of Microsoft and its Subsidiaries on account of such End Users’ 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 as Conforming Runtimes. 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 New Moonlight Collaboration Agreement between Novell and Microsoft that was publicly announced on or about December 17, 2009 (the "Agreement"); however, the foregoing covenant will continue as to specific copies of Moonlight Implementations originally provided by Novell and distributed 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 Implementations (e.g., any versions of the General Public License).
“Conforming Runtime” means plug-in or other runtime functionality hosted by a Conforming Host for receiving and rendering, wholly within such Conforming Host, media and interactive applications compatible with Silverlight 3 or Silverlight 4.
“End User” means an entity or individual that uses for its intended purpose a Moonlight Implementation obtained directly from Novell or through a Distributor. An entity or individual is not an End User 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 an End User and a Distributor for use of the same copy of a Moonlight Implementation.
“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.
“Moonlight Implementation” means only those specific portions of Moonlight 3 or Moonlight 4 that run only as Conforming Runtimes within a Conforming Host on a Personal Computer and are not licensed under GPLv3 or a Similar License.
“Necessary Claims” means claims of a patent or patent application that (i) Microsoft 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 Party Implementation; or (3) covering the implementation of other published specifications that may be referenced in the Silverlight Specification.
“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 commencing on the Effective Date and continuing through December 31, 2012, unless terminated earlier pursuant to the Agreement.
"Conforming Host" means either a (a) web browser; or (b) minimal shell application (e.g., launcher), implemented by Novell as described in and only to the extent compliant with the Silverlight Specification, that hosts a Moonlight Implementation for purposes of allowing use of the Moonlight Implementation outside of a web browser. Without limitation of the foregoing, such a shell application is not a “Conforming Host” if it does not implement and comply with the specific requirements in the Silverlight Specification for (i) limiting the functionality of Moonlight Implementations within such Conforming Host in the same way that the Moonlight Implementations would be limited if they were hosted in a web browser (e.g. limiting the ability of such Moonlight Implementations to write to the file system of the Personal Computer), (ii) implementing in a sandboxed manner any functionality that is not generally available to plug-ins to web browsers but which the Silverlight Specification specifies should be offered for Party Implementations hosted outside a web browser, and (iii) turning off functionality that is specific to web browsers."Covered Operating System" means any operating system software for Personal Computers other than current or future versions of Microsoft Windows and Apple Macintosh operating systems.
"Silverlight 3" means the commercial release version of Microsoft Silverlight 3.
"Silverlight 4" means the commercial release version of Microsoft Silverlight 4.
"Distributors" means resellers, recipients, and distributors to the extent they are authorized (directly or indirectly) by a Party or its Subsidiaries to resell, license, supply, distribute or otherwise make available Party 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).
"Moonlight 3 Test Suite" means a suite of tests and corresponding test code to be provided by Microsoft to Novell under Section 2.2 below for testing the functionality of Novell’s Moonlight 3 candidates, including all updates thereto provided by Microsoft during the Term pursuant to Section 2.4.
"Moonlight 4 Test Suite" means a suite of tests and corresponding test code to be provided by Microsoft to Novell under Section 2.2 below for testing the functionality of Novell’s Moonlight 4 candidates, including all updates thereto provided by Microsoft during the Term pursuant to Section 2.4.
"Personal Computer" means a general purpose computer (including a laptop, tablet PC, desktop or ultra mobile personal computer including netbooks) 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, personal media players (PMPs), 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.
"Silverlight Specification" means the Microsoft specifications relevant to developing Moonlight 3 or Moonlight 4 (as the case may be) to be compatible with Silverlight 3 or Silverlight 4, respectively, and any updates thereto identified as such and delivered to Novell pursuant to the Agreement.
"Effective Date" means November 30, 2009.