Covenant to Customers
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue a Customer of Xandros for infringement under Microsoft’s Covered Patents on account of such Customer’s use of specific copies of Covered Products as distributed by Xandros during the Term. For the avoidance of doubt, bug fixes and minor updates to a specific copy 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 and Server 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 Cooperation Agreement between Xandros and Microsoft that was publicly announced on June 4, 2007; however, any covenant provided to specific copies of Covered Products before such update shall survive under its initial terms and conditions.
The foregoing covenants shall survive for such specific copies of Covered Products distributed during the Term until six years after the last of any applicable Covered Patents expire.
Definitions of capitalized terms used above may be found in the Definitions section below.
Definitions
“Client Offerings” means any products of Xandros that include the Linux operating system and are used only on a client laptop or client desktop computer. Examples of Client Offerings include Xandros Desktop product offerings running on a client laptop or desktop computer.
“Covered Products” means specific copies of (1) Client Offerings for which a Customer has paid Xandros for a Patent SKU and MLGP has received the applicable Fee, and (2) Server Offerings for which Xandros has paid MLGP the applicable Fee; provided such specific copies of Client Offerings and Server Offerings do not comprise or include Foundry Products, Clone Products or Other Excluded Products. Covered Products do not include Free Downloads, BRIC Server Offerings or BRIC Client Offerings.
“Covered Patents” means Patents that 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 release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents
“Customers” means an enterprise or individual that utilizes a specific copy of a Covered Product for its intended purpose as authorized by Xandros. 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.
“Server Offerings” means any products of Xandros that include the Linux operating system and are used on a server or any non-client computer (but not including Mainframes). Examples of Server Offerings include Xandros Server product offerings.
“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 7.1, ending on the earlier of (i) five (5) years from the Effective Date, or (ii) the date of termination of this Agreement.
