Covenant to Customers
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue a Customer of Linspire for infringement under Microsoft’s Covered Patents on account of such Customer’s use of specific copies of a Covered Product as originally distributed by Linspire; provided, however, the foregoing covenant is limited to only those specific copies for which such Customer has purchased a Patent SKU or Patent SKU Plus. For the avoidance of doubt, a specific copy to which bug fixes and minor updates have been applied is considered the same copy and remains covered by the above covenant provided such bug fixes and minor updates do not add substantial new functionality; an upgrade (or a new version) of a specific copy is treated as two different copies.
The above covenant is personal to any given Customer and is non-transferable. By necessity, the covenant is conditioned upon the Customer providing Microsoft, upon its request, with sufficient information to verify which copies of Client Offerings are Covered Products subject to the covenant. Microsoft reserves the right to update (including discontinue) the above covenant pursuant to the terms of the Patent Agreement between Linspire and Microsoft that was publicly announced on June 13, 2007; however, any covenant provided to specific copies of Covered Products before such update shall survive under its initial terms and conditions.
The foregoing covenant shall survive for such specific copies of Covered Products in perpetuity.
Definitions of capitalized terms used above may be found in the Definitions section below.
Definitions
“Client Offerings” means any software products of Linspire that include the Linux operating system, including Linspire Five-0 and successor offerings. However, Client Offerings do not include (i) any portions of products that comprise or include Foundry Products, Clone Products, GPLv3 Software or Other Excluded Products, (ii) Freespire and any other software offerings that include the Linux operating system for which Linspire receives no Revenue, (iii) any products running on a server, or (iv) any Linspire CNR applications distributed separately from the Linux operating system.
“Covered Product” means a specific copy of a Client Offering for which a Customer has paid for a Patent SKU or Patent SKU Plus and MLGP has received the applicable Fee; provided, however, after MLGP receives such Fee then such Client Offering will be deemed a Covered Product as of the date such Customer paid for such Patent SKU or Patent SKU Plus.
“Covered Patents” means any Patents that may cover the Covered Products which Microsoft or any of its Subsidiaries now or hereafter (i) owns or controls, or (ii) has the ability or right to grant a covenant not to sue without requiring payment to any third parties.
“Customers” means an enterprise or individual that utilizes a specific copy of a Covered Product for its intended purpose as authorized by Linspire. Enterprises 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; or (2) resell, license, supply, or distribute the output of SDKs or 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
“Patent SKU” means patent coverage from Microsoft purchased for a copy of a Client Offering under the terms set forth in the Covenant to Customers.
“Patent SKU Plus” means patent coverage from Microsoft purchased for a copy of a Client Offering under the terms set forth in the Covenant to Customers, plus the rights to distribute certain other Microsoft technology under the terms set forth in the 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 a party, but such entity shall be considered a Subsidiary only when 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 when such ownership or control exists.
“Term” means the period beginning on the Effective Date and, unless extended pursuant to Section 9.1, ending on the earlier of (i) three (3) years from the Effective Date, or (ii) the date of termination of this Agreement.
