Covenant to Expanded SLES Subscription Customers
Published: November 10, 2008
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue Novell’s Customers and Novell’s Subsidiaries’ Customers for infringement under Covered Patents of Microsoft on account of such Customer’s use during the Covenant Term of those portions of a specific copy of a Covered Product that both (i) meet the requirements of the Certificate, and (ii) are supported by Novell under a support agreement provided by redeeming the Certificate.
Definitions of capitalized terms used above may be found below.
Microsoft reserves the right to update (including discontinue) the foregoing covenant at any time; however, the covenant as set forth above will continue for the Covenant Term as to those portions of specific copies of Covered Products that were subject to the foregoing covenant before such update. The foregoing covenant is personal to the individual Customer and is not transferrable. Microsoft reserves all rights not expressly provided under the foregoing covenant.
“Applications Programming Interfaces” means a set of one or more routines or interfaces provided by a software program (including an operating system, middleware or other software application) that are used to invoke or direct functions or services of such software program for use by other software programs. For avoidance of doubt, Applications Programming Interfaces does not include protocols used by software programs running on a computer system to communicate with another computer or software programs running on another computer.
“Certificate” means a tangible or electronic item that Novell provides to Microsoft and Microsoft resells to Customers of Novell under the Expanded SLES Subscription Agreement between Novell and Microsoft that was publicly announced on August 20, 2008.
“Clone Product” means a product (or major component thereof) that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of Microsoft (“Prior Product”)and that (a) has the same or substantially the same user interface as the Prior Product, or (b) implements all or substantially all of the Applications Programming Interfaces of the Prior Product. Those portions of a product that are otherwise licensed to Novell from Microsoft, or that are compliant with a specification of a standards organization as to which Microsoft has consented to the use of its Patents therefor, shall not be considered in determining whether the product is a Clone Product.
(i) Versions of products sold, licensed, supplied, distributed or otherwise made available by Novell for Revenue before the Effective Date (or major components thereof) (“Existing Products”) and new versions of such Existing Products to the extent they incorporate features and functionality of Existing Products (“Existing Product Functionality”) will not be deemed Clone Products. For purposes of clarification, Existing Product Functionality may be considered in determining whether a new version of an Existing Product (or major component thereof) meets the requirements set forth in the first paragraph of this definition, provided that, even if the new version (or major component thereof) meets such requirements, (A) only the Clone Product Functionality will be deemed a Clone Product and (B) the Existing Product Functionality will not be deemed a Clone Product. For purposes of this subsection (i), “Clone Product Functionality” means features or functionality of such new version (other than Existing Product Functionality) that add to meeting the requirements set forth in the first paragraph of this definition.
(ii) Notwithstanding subsection (i) above, Wine, OpenXchange, StarOffice and OpenOffice are not subject to such subsection (i); however, the exclusion of such products from such subsection (i) is without implication as to (and shall not affect the determination of) whether such products (or any features or functionality thereof) are Clone Products. Further, no inference shall be drawn from the reference to the above products in this subsection as to whether such products are Clone Products, and this subsection (ii) and subsection (i) shall not be admitted or referred to in evidence in any dispute regarding whether any of the products referred to in this subsection is a Clone Product.
“Covenant Term” means, for each specific copy of a Covered Product, the duration of time that such product is supported by Novell as authorized by the Certificate. For the avoidance of doubt, each specific copy of a Covered Product has its own Covenant Term not to exceed a (3) year continuous period.
“Covered Patents” of Microsoft means Patents entitled, in whole or in part, to an effective filing date on or before the end of the Patent Term (i) which Microsoft or any of its Subsidiaries now or hereafter during the Patent Term owns or controls, or (ii) under which (and to the extent to which) Microsoft or any of its Subsidiaries now or hereafter during the Patent 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.
“Covered Product” means those portions of a product that meet the requirements of a Certificate and are supported by Novell except for Clone Products and Other Excluded Products.
“Customers” means an entity or individual that utilizes a specific copy of a Covered Product that meets the requirements of a Certificate and is supported by Novell under a support agreement provided by redeeming the Certificate. Entities or individuals are not Customers when they (1) resell, license, supply, distribute or otherwise make available to third parties such specific copy or additional copies of the 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 entity or individual cannot qualify both as a Customer and Distributor for use of the same copy of any given product or service.
“Distributors” means resellers and distributors to the extent they are authorized by a Party (directly or indirectly) to resell, license, supply, distribute or otherwise make available Covered Products of Novell (whether the resale or distribution is on a stand-alone basis, on an OEM basis as bundled with hardware or other software of the reseller or distributor, or otherwise).
“Effective Date” means November 2, 2006.
“Extendible Third Party Patents” means any Patent entitled, in whole or in part, to an effective filing date on or before the end of the Patent Term which is not owned or controlled during the Patent Term by Microsoft or any of its Subsidiaries but under which Microsoft or any of its Subsidiaries now has or hereafter during the Patent Term obtains the ability or right to grant a covenant not to sue or other freedom from suit to Customers of Novell, where the grant of the covenant or other freedom from suit is contingent on the payment of consideration to a third party which (a) is not a Subsidiary of Microsoft or (b) at the time an invention claimed by the Patent was conceived, was not a Subsidiary of Microsoft or an employee or contractor of Microsoft or its Subsidiaries.
“Other Excluded Products” means (a) office productivity applications (word processing, spreadsheets, presentation software, etc.) that are hosted by or running on a computer acting as a server for a connected client device, and (b) new features and functions in the following categories of products, but not to the extent the products embody operating system software or other enabling technologies: (i) video game consoles (e.g., Xbox video game consoles), console games, video game applications designed to run on a computer, and on-line video gaming services (e.g., Xbox live); (ii) business applications designed, marketed and used to meet the data processing requirements of particular business functions, such as accounting, payroll, human resources, project management, personnel performance management, sales management, financial forecasting, financial reporting, customer relationship management, and supply chain management; (iii) mail transfer agents (also known as email servers); and (iv) unified communications.
“Patents” means any and all patents, utility models, patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable patent right anywhere worldwide. Patents do not include design patents, design registrations, or trade dress rights.
“Patent Term” means the period beginning on the Effective Date and ending on January 1, 2012, unless (and for so long as) extended pursuant to Section 7.6 of the Patent Cooperation Agreement between Novell and Microsoft that was publicly announced on November 2, 2006 (“Cooperation Agreement”), provided that, notwithstanding the foregoing, the Patent Term will end on the date of termination of the Cooperation Agreement.
“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 Microsoft, 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 Microsoft, but such entity shall be considered a Subsidiary only so long as such ownership or control exists.