Covenant to Downstream Recipients of Moonlight - Microsoft & Novell Interoperability Collaboration
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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 1.1 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 Sept 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 1.1.
Links
Technical Cooperation Agreement
An Open Letter to the Community
Community Support for the Announcement