EXHIBIT 10.16
MICROSOFT MULTIPATH I/O DRIVER
PROGRAM AGREEMENT
This MICROSOFT MULTIPATH I/O DRIVER PROGRAM AGREEMENT ("AGREEMENT") is
made and entered as of August 26, 2002 ("EFFECTIVE DATE"), by and between
MICROSOFT CORPORATION, a Washington corporation, with offices at Xxx Xxxxxxxxx
Xxx, Xxxxxxx, XX 00000-0000 ("MICROSOFT"), and EGENERA, INC., having its
principal place of business at MARLBORO, MASSACHUSETTS ("COMPANY").
BACKGROUND
Company develops and markets block mode (disk) storage devices and/or storage
management software products. To improve the performance of Company's products
on Windows Operating Systems (as defined below), Company desires to use
Microsoft's Multipath I/O Driver Kit software. Microsoft is willing to license
the same to Company at no charge, so long as Company complies with the
requirements of Microsoft's Multipath I/O Driver Program as set forth in this
Agreement and its Exhibits.
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 "MPIO DDK" means the software and related materials described in
Exhibit A.
1.2 "MULTIPATH SOLUTION" means a multipath solution developed by Company
that enables I/O failover and possibly load-balancing when used with
the Company's block mode (disk) storage devices and/or storage
management software with Windows Operating Systems. The Multipath
Solution includes (i) drivers and installation (INF) files developed
using the MPIO DDK; (ii) a device specific module(s) for one or more
block mode (disk) storage devices; (iii) an installer application
based on the sample code; and (iv) a user interface and (v)
documentation.
1.3 "WINDOWS OPERATING SYSTEMS" means the following Microsoft Windows
operating system products: Microsoft Windows 2000 Server, Windows
2000 Advanced Server, or Windows 2000 Datacenter Server (with
Service Pack 2 or later installed), or any version of the Windows.
NET Server Family (Beta 3 or Limited Edition or later).
2. DEVELOPMENT OF MULTIPATH SOLUTION
2.1 Delivery of MPIO DDK.
(a) Microsoft shall deliver, or otherwise make available, the MPIO
DDK to Company no later than April 15, 2002 or 14 days after
execution of this agreement, whichever occurs later. The MPIO
DDK is deemed accepted upon receipt.
(b) Microsoft may, but is not obligated to, provide updates of the
MPIO DDK to Company hereunder, in which case such updates
shall also be deemed to be included in the defined term MPIO
DDK and therefore governed by this Agreement, unless other
terms of use are provided to Company by Microsoft with such
updates. Company shall use commercially reasonable efforts to
use
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the most recent updates of the MPIO DDK delivered or made
available to it by Microsoft with all subsequent releases of
the Multipath Solutions developed with the MPIO DDK.
2.2 Use of MPIO DDK. Company shall use the MPIO DDK to develop one or
more Multipath Solutions. Company's use of the MPIO DDK is subject
to the terms and conditions of the end user license agreement
("XXXX") attached as Exhibit B.
2.3 Development Requirements. In developing the Multipath Solutions,
Company shall comply with the following:
(a) Company shall not alter or remove any copyright, trademark or
other protective notices contained in the MPIO DDK (or any
redistributables);
(b) The storage devices managed by Company's Multipath Solution
must be exposed as block mode devices and not file server
oriented devices. In the case where a storage device supports
both block mode devices and file server oriented devices, the
Multipath Solution may be applied to the block mode interfaces
only;
(c) Multipath Solutions must implement host interfaces to Windows
Operating Systems using only the driver interfaces documented
in the applicable driver development kit (DDK) for the Windows
Operating System. Multipath Solutions may not use any
undocumented host interfaces;
(d) In the device specific module for a Multipath Solution,
Company must implement all Windows Management Instrumentation
(WMI) interfaces that are documented in the applicable driver
development kit for the Windows Operating System;
(e) If Company extends any WMI interfaces in a Multipath Solution,
Company must restrict access to the new classes of the WMI
interfaces via access controls lists (ACLs);
(f) The installation routine for the Multipath Solution must use
INF files and call the setup APIs in the applicable Windows
Operating System, per the sample installation code included in
the MPIO DDK.
(g) Company shall use the MPIO DDK to create complete Multipath
Solutions only (i.e., Multipath Solutions containing: (i)
drivers and installation (INF) files developed using the MPIO
DDK; (ii) a device specific module for Company's block mode
(disk) storage devices and/or storage management software;
(iii) an installer application; and (iv) a user interface);
(h) Company shall not use the MPIO DDK to create Multipath
Solutions that restrict access or otherwise forcibly tie the
storage device to a particular host bus adapter's driver, but
may use additional capabilities provided by an adapter or
driver, so long as the MPIO software functions when used with
standard miniport drivers; and
(i) Company's Multipath Solution must be developed so that its
installation and use on a computer or server does not delete
or disrupt the installation or use of any
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other Microsoft MPIO-based Multipath solution that may be
installed either after or before the installation of Company's
Multipath Solution.
3. DISTRIBUTION AND SUPPORT OF MULTIPATH SOLUTIONS
3.1 Designed for Windows Operating Systems Program(s). Prior to
distributing any Multipath Solution, Company must submit the
Multipath Solution for evaluation and testing under Microsoft's
Windows Logo Program for Hardware ("LOGO PROGRAM") described, as of
the Effective Date, at xxxx://xxx.xxxxxxxxx.xxx/xxxxxx. Company
shall not distribute any Multipath Solution developed using the MPIO
DDK unless and until the Multipath Solution has satisfied all of the
then-current requirements under the Logo Program for use of the
applicable program logo(s).
3.2 End User Agreements and Support. Multipath Solution developed using
the MPIO DDK shall be distributed with an end user license agreement
that contains terms that are at least as protective of Microsoft as
the XXXX set forth in Exhibit B. Company shall inform its end-users
that any technical support regarding use of the Multipath Solution
must be directed to Company. Company is responsible for any and all
maintenance, end user support, technical support, and updates with
respect to its Multipath Solution, including any components from the
MPIO DDK incorporated therein. Microsoft may, but is not obligated
to, provide end users with updates to the redistributables supplied
with the MPIO DDK through updates or new versions of Windows
Operating Systems.
3.3 Support Agreement with Microsoft. Prior to distributing any
Multipath Solution developed using the MPIO DDK, Company and
Microsoft shall enter into a separate written agreement that further
describes the parties' respective obligations to provide end user
technical support. Such agreement will be consistent with the terms
and conditions of this Agreement. If Microsoft determines, in it's
sole discretion, that an existing agreement with Company satisfies
the foregoing requirements than such agreement will be attached as
Exhibit C.
3.4 Relationship with Microsoft. Company shall not make any untrue or
misleading statement regarding the nature of its relationship with
Microsoft, or regarding any Multipath Solutions built using the MPIO
DDK. In describing Company's activities related to this Agreement,
Company will limit its description to the following: "Company is a
licensee of the MPIO Driver Development Kit and is using it in
Company's <>."
(a) In the event Company has any doubt regarding whether
particular statements comply with this Section 3.4, Company
will seek Microsoft's written approval before making the
statement.
(b) At Microsoft's request, Company will promptly retract to the
extent possible any statements made by Company that Microsoft
reasonably deems not in compliance with this Section 3.4. This
remedy shall be in addition to, and not in lieu of, any
remedies at law or in equity to which Microsoft may be
entitled.
4. INPUT
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Company may agree to provide to Microsoft comments, suggestions or other
feedback regarding the MPIO DDK and/or Windows Operating Systems (collectively,
"Feedback"). Company further agrees that: (i) Microsoft may freely use,
disclose, reproduce, license, distribute and otherwise commercialize the
Feedback in any Microsoft product, technology, service, specification or other
documentation (collectively, "MICROSOFT OFFERINGS"); (ii) Company also grants
third parties, without charge, only those patent rights necessary to enable
their products, technologies or services to use or interface with any specific
parts of a Microsoft product, technology or service that incorporates the
Feedback; and (iii) Company will not give Microsoft Feedback that is subject to
license terms that seek to require any Microsoft Offering incorporating or
derived from such Feedback, or other Microsoft intellectual property, to be
licensed to or otherwise shared with any third party.
5. CONFIDENTIALITY
5.1 Confidentiality Obligations. Company expressly undertakes to retain
in confidence any source code supplied with the MPIO DDK, the terms
and conditions of this Agreement, and any other non-public
information provided by Microsoft under this Agreement
("CONFIDENTIAL INFORMATION"), and will make no use of Confidential
Information except as permitted under the terms of this Agreement.
Company shall use its best efforts to protect Confidential
Information, which efforts shall be at least as great as the
precautions it takes to protect its own confidential information and
in no event less than a reasonable degree of care. Company may
disclose Confidential Information only to Company's employees and
consultants on a need-to-know basis. Company will have executed or
shall execute appropriate written agreements with employees and
consultants sufficient to enable Company to enforce all the
provisions of this Agreement. Company may disclose Confidential
Information in accordance with judicial or other governmental order,
provided Company gives Microsoft reasonable notice prior to such
disclosure to allow Microsoft a reasonable opportunity to seek a
protective order or equivalent.
5.2 Exclusions. Confidential Information does not include that
information defined as Confidential Information above which: (i)
became generally publicly available without the receiving party's
breach of any obligation owed to the disclosing party under this
Agreement; (ii) became known to the receiving party prior to the
disclosure of such information; (iii) became known to the receiving
party from a third party other than by the breach of an obligation
of confidentiality owed under this Agreement, provided that such
third party had the legal right to disclose such information; or
(iv) was independently developed by the receiving party.
6. INDEPENDENT DEVELOPMENT
Nothing in this Agreement restricts either party's ability to acquire, license,
develop, manufacture or distribute for itself, or have others acquire, license,
develop, manufacture or distribute for either party, similar technology
performing the same or similar functions as the technology contemplated by this
Agreement, or to market and distribute such similar technology in addition to,
or in lieu of, the technology contemplated by this Agreement.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL MICROSOFT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, PUNITIVE, SPECIAL OR OTHER DAMAGES WHATSOEVER, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS
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AGREEMENT OR THE USE OF OR INABILITY TO USE THE MPIO DDK, EVEN IF MICROSOFT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM & TERMINATION
8.1 Term. This Agreement commences on the Effective Date and, unless
earlier terminated under Section 8.2, expires on the earlier date
of: (a) the first commercial release of the successor version of the
Microsoft Windows operating system after Net Server; and (b) the
third anniversary of the Effective Date.
8.2 Termination. Except for breaches of Section 5 (Confidentiality),
either party may terminate this Agreement immediately upon written
notice at any time if the other party is in material breach of any
provision of this Agreement and has failed to cure that breach
within thirty (30) days after written notice thereof. Either party
may terminate this Agreement immediately upon written notice at any
time if the other party is in breach of Section 5 (Confidentiality).
8.3 Effect of Termination
(a) Upon the expiration or termination of this Agreement, Company
shall return the MPIO DDK to Microsoft. Unless Microsoft
terminates this Agreement for a breach by Company, after the
expiration or termination of this Agreement Company may
continue to distribute versions of Company's Multipath
Solutions that have been developed prior to expiration or
termination subject to the terms and conditions of this
Agreement and the MPIO DDK end user license agreement attached
as Exhibit B. If this Agreement is terminated due to a breach
by Company, however, all of Company's rights to use the MPIO
DDK (and any redistributables contained there) immediately
terminate as well.
(b) Sections 1, 3.4 and 4 through 11 survive any termination or
expiration of this Agreement.
9. REPRESENTATIONS AND WARRANTIES
9.1 Mutual Warranties. Each party hereby represents and warrants that
(i) this Agreement has been duly and validly executed and delivered
by such party and constitutes a legal and binding obligation of such
party, enforceable against such party in accordance with its terms;
(ii) such party has all necessary power and authority to execute and
perform in accordance with this Agreement; and (iii) such party's
execution, delivery and performance of this Agreement will not
conflict with or violate any provision of law, rule or regulation to
which such party is subject, or any agreement or other obligation
directly or indirectly applicable to such party or binding upon its
assets.
9.2 NO OTHER WARRANTIES. EXCEPT AS SET FORTH IN SECTION 9.1 OR THE END
USER LICENSE AGREEMENT FOR THE MPIO DDK ATTACHED AS EXHIBIT B, THERE
IS NO WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION,
CORRESPONDENCE TO DESCRIPTION, AUTHORITY, OR NONINFRINGEMENT IN ANY
MATERIALS OR INTELLECTUAL PROPERTY PROVIDED HEREUNDER, INCLUDING
WITHOUT LIMITATION THE MPIO DDK. EXCEPT AS SET FORTH IN SECTION 9.1
OR THE END USER LICENSE AGREEMENT FOR THE MPIO DDK ATTACHED AS
EXHIBIT B, EACH PARTY,
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ON BEHALF OF ITSELF AND ITS SUPPLIERS AND WITH RESPECT TO THE OTHER
PARTY AND ALL OTHER PERSONS OF EVERY NATURE WHATSOEVER, DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY,
AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY (IF
ANY) IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, OF FITNESS
FOR A PARTICULAR PURPOSE, OF REASONABLE CARE OR WORKMANLIKE EFFORT,
OF LACK OF NEGLIGENCE, OF A LACK OF VIRUSES, OF ACCURACY OR
COMPLETENESS OF RESPONSES, OR OF NON-INFRINGEMENT, AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE,
ALL WITH REGARD TO ALL MATERIALS AND INTELLECTUAL PROPERTY LICENSED
OR OTHERWISE PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION THE MPIO DDK.
10. NOTICES
All notices and requests in connection with this Agreement shall be deemed given
as of the day they are received either by messenger, delivery service, or in the
United States of America mails, postage prepaid, certified or registered, return
receipt requested, and addressed as follows:
To Company: To Microsoft
Xxxxxx X. Xxxxxxx Microsoft Corporation
EGENERA Xxx Xxxxxxxxx Xxx
000 XXXXXX XXXXXX Xxxxxxx, XX 00000-0000
XXXXXXXX, XX 00000 Attention:_______________________
Phone:___________________________
Fax: (000) 000-0000
Copy to: Law & Corporate Affairs
Fax: (000) 000-0000
11. GENERAL
11.1 Governing Law/Jurisdiction/Attorneys' Fees. This Agreement shall be
construed and controlled by the laws of the State of Washington.,
Company consents to jurisdiction and venue in the federal courts
sitting in King County, Washington, unless no federal subject matter
jurisdiction exists, in which case Company consents to jurisdiction
and venue in the Superior Court of King County, Washington, Process
may be served on either party by U.S. Mail, postage prepaid,
certified or registered, return receipt requested, or by such other
method as is authorized by the Washington Long Arm Statute. If
either party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees, costs and other
expenses.
11.2 No Partnership. Neither this Agreement, nor any terms and conditions
contained herein, shall be construed as creating a partnership,
joint venture, agency relationship or as granting a franchise.
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11.3 Severability. If any provision of this Agreement other than Section
11.4 is held by a court of competent jurisdiction to be illegal,
invalid or unenforceable, the remaining provisions shall remain in
full force and effect. The parties agree that if the provisions of
Section 11.4 is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, this entire Agreement shall be
rendered null and void.
11.4 Prohibition on Assignment by Company. Company may not assign this
Agreement, or any rights or obligations hereunder, whether by
operation of contract, law or otherwise, except with the express
written consent of Microsoft, and any attempted assignment by
Company in violation of this Section shall be void. For purposes of
this Agreement, an "assignment" by Company under this Section shall
be deemed to include, without limitation, each of the following: (a)
a change in beneficial ownership of Company of greater than twenty
percent (20%) (whether in a single transaction or series of
transactions) if Company is a partnership, trust, limited liability
company or other like entity; (b) a merger of Company with another
party, whether or not Company is the surviving entity; (c) the
acquisition of more than twenty percent (20%) of any class of
Company's voting stock (or any class of non-voting security
convertible into voting stock) by another party (whether in a single
transaction or series of transactions); and (d) the sale or other
transfer of more than fifty percent (50%) of Company's assets
(whether in a single transaction or series of transactions). In the
event of such assignment or attempted assignment by Company,
Microsoft shall have the right to immediately terminate this
Agreement.
11.5 Taxes. Company shall pay, be responsible for and indemnify Microsoft
and hold Microsoft harmless from and against any and all sales
taxes, use taxes and any other taxes imposed by any jurisdiction as
a result of (a) the entry into this Agreement; (b) the performance
of any of the provisions of this Agreement; or (c) the transfer of
any property, rights or any other grant hereunder.
11.6 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements or
communications. It shall not be modified except by a written
agreement dated subsequent to the date of this Agreement and signed
on behalf of Company and Microsoft by their respective duly
authorized representatives. No waiver of any breach of any provision
of this Agreement shall constitute a waiver of any prior, concurrent
or subsequent breach of the same or any other provisions hereof, and
no waiver shall be effective unless made in writing and signed by an
authorized representative of the waiving party.
IN WITNESS WHEREOF, Microsoft and Company have caused this Agreement to be
executed by their duly authorized representatives as of the date first written
above.
MICROSOFT CORPORATION COMPANY
/s/ Xxxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------------
BY: Xxxxxx Xxxxx BY: Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------------
Name (Print) Name (Print)
VP CFO
---------------------------------- ----------------------------------------
Title Title
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August 30, 2002 August 26, 2002
------------------------------- ---------------------------------------
Date Date
EXHIBIT A
MPIO DDK
MPIO DDK means software and related documents designated by Microsoft as the
MPIO Driver Development Kit. These include the following components and any
updates, bug fixes, modifications or successor versions thereto provided by
Microsoft to Company under this Agreement:
MPIO DDK Kit Components:
Microsoft MPIO DDK
Microsoft MPIO specification
Microsoft MPIO binaries
Sample DSM (device specific module) source
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EXHIBIT B
End user License Agreement for MPIO DDK
IMPORTANT-READ CAREFULLY: This Microsoft End-User License Agreement ("XXXX") is
a legal agreement between you (either an individual or a single entity) and
Microsoft Corporation for the Microsoft software product identified above, which
includes computer software and may include associated media, printed materials,
additional computer software applications, and "online" or electronic
documentation ("SOFTWARE PRODUCT"). BY DOWNLOADING, INSTALLING, COPYING, OR
OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS
XXXX. IF YOU DO NOT AGREE TO THE TERMS OF THIS XXXX, DO NOT INSTALL, COPY OR
OTHERWISE USE THE SOFTWARE PRODUCT. IF YOU RECEIVED THE SOFTWARE PRODUCT ON
DISKS OR OTHER MEDIA, PROMPTLY RETURN THE DISKS AND ACCOMPANYING ITEMS
(INCLUDING WRITTEN MATERIALS AND BINDERS OR OTHER CONTAINERS) TO MICROSOFT.
SOFTWARE PRODUCT LICENSE
The SOFTWARE PRODUCT is protected by copyright laws and international copyright
treaties, as well as other intellectual property laws and treaties. The SOFTWARE
PRODUCT is licensed, not sold.
1. GRANT OF LICENSE. This XXXX grants you the following rights, provided that
you comply with the terms and conditions of this XXXX:
a. SOFTWARE PRODUCT. Microsoft grants you a personal, limited, non-exclusive,
nontransferable, non-assignable license to install and use an unlimited number
of copies of the SOFTWARE PRODUCT on computers, including workstations,
terminals or other digital electronic devices ("COMPUTERS") to design, develop
and test device specific modules ("DSMs") that work in conjunction with
Microsoft Windows 2000 Server, Windows 2000 Advanced Server, or Windows 2000
Datacenter Server (with Service Pack 2 or later installed), or Windows .NET
Server, Windows .NET Enterprise Server, Windows .NET Datacenter Server (beta3 or
later), or any successor version thereof (each a "Microsoft Operating System
Product").
b. Sample Code. You may modify the sample source code located in the SOFTWARE
PRODUCT's SRC directory ("Sample Code") to design, develop and test your DSMs
that work in conjunction with Microsoft Operating System Products. You may also
reproduce and distribute in object code form the Sample Code along with any
modifications you make to the Sample Code, provided that you comply with the
Distribution Requirements described below in Section 1.c. For purposes of this
Section, "modifications" shall mean enhancements to the functionality of the
Sample Code and changes required to support any specific storage devices.
c. Redistribution Requirements. You may reproduce and distribute the modified
versions of the Sample Code to support any specific storage devices in object
code form ("Redistributables") as described above, provided that: (i) you
distribute the Redistributables only in conjunction with and as a part of your
DSMs; (ii) the Redistributables only operate in conjunction with Microsoft
Operating System Products; (iii) you do not permit further redistribution of the
Redistributables
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by your end-user customers; (iv) you do not use Microsoft's name, logo, or
trademarks to advertise, market or promote your DSMs without the express written
permission of Microsoft; (v) you include a valid copyright notice on your DSMs;
(vi) you include all copyright and trademark notices contained in the Sample
Code; (vii) you agree to indemnify, hold harmless, and defend Microsoft from and
against any claims or lawsuits, including attorney's fees, that arise or result
from the use or distribution of your DSMs; (vii) you must have renamed the
Sample Code and the name of the drivers produced by it as part of your DSMs. You
are not authorized to distribute the original Sample Code.
d. PRE-RELEASE CODE. The SOFTWARE PRODUCT may contain pre-release code that is
not at the level of performance and compatibility of the final, generally
available, product offering. These portions of the SOFTWARE PRODUCT may not
operate correctly and may be substantially modified prior to first commercial
shipment. Microsoft is not obligated to make this or any later version of the
SOFTWARE PRODUCT commercially available. Microsoft grants you the right to
distribute test versions of your DSMs created using the pre-release code
provided you comply with the Distribution Requirements described in Section 1
and the following additional provisions: (a) you must xxxx the test version of
your drivers "BETA" and (b) you are solely responsible for updating your
customers with versions of your DSMs that operate satisfactorily with the final
commercial release of such pre-release code.
e. Reserved Rights. All rights not expressly granted are reserved to Microsoft.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
a. Limitations on Reverse Engineering, Decompilation, and Disassembly. You may
not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except
and only to the extent that such activity is expressly permitted by applicable
law notwithstanding this limitation.
b. Identified Software. Your license rights to the SOFTWARE PRODUCT are
conditioned upon you (a) not incorporating Identified Software into, or
combining Identified Software with, the SOFTWARE PRODUCT or a derivative work
thereof; (b) not distributing Identified Software in conjunction with the
SOFTWARE PRODUCT, including without limitation the Sample Code, or a derivative
work thereof; and (c) not using Identified Software in the development of a
derivative work of the SOFTWARE PRODUCT. "Identified Software" means software
which is licensed pursuant to terms that directly or indirectly (i) create, or
purport to create, obligations for Microsoft with respect to the SOFTWARE
PRODUCT or derivative work thereof or (ii) grant, or purport to grant, to any
third party any rights or immunities under Microsoft's intellectual property or
proprietary rights in the SOFTWARE PRODUCT or derivative work thereof.
Identified Software includes, without limitation, any software that requires as
a condition of use, modification and/or distribution of such software that other
software incorporated into, derived from or distributed with such software be
(x) disclosed or distributed in source code form; (y) be licensed for the
purpose of making derivative works; or (z) be redistributable at no charge.
c. Rental. You may not rent, lease, or lend the SOFTWARE PRODUCT.
d. Consent to Use of Data. You agree that Microsoft and its affiliates may
collect and use technical information gathered in any manner as part of the
product support services provided to
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you, if any, related to the SOFTWARE PRODUCT. Microsoft may use this
information solely to improve our products or to provide customized services or
technologies to you. Microsoft may disclose this information to others, but not
in a form that personally identifies you.
e. Upgrades. To use a SOFTWARE PRODUCT labeled as an upgrade, you must first
be licensed for the product identified by Microsoft as eligible for the
upgrade. After upgrading, you may no longer use the product that formed the
basis for your upgrade eligibility.
f. ADDITIONAL SOFTWARE/SERVICES. Microsoft is not obligated to provide
maintenance, technical or other support, or updates to you for the SOFTWARE
PRODUCT licensed under this XXXX. In the event that Microsoft does provide
maintenance, technical or other support, or updates, this XXXX applies to such
additional software and updates of the SOFTWARE PRODUCT, including without
limitation supplements, services packages, hot fixes, or add-on components
(collectively "Supplements") that Microsoft may provide to you or make
available to you after the date you obtain your initial copy of the SOFTWARE
PRODUCT, unless we provide other terms along with such Supplements.
g. Software Transfer. Transfer - Internal. You may move the SOFTWARE PRODUCT to
a different computer on your premises. Transfer to Third Party. The initial
user of the SOFTWARE PRODUCT may not transfer the SOFTWARE PRODUCT to another
end user. This prohibition includes any indirect transfer, such as a
consignment.
h. Termination. Without prejudice to any other rights, Microsoft may terminate
this XXXX if you fail to comply with the terms and conditions of this XXXX. In
such event, you must destroy all copies of the SOFTWARE PRODUCT and all of its
component parts.
3. LINKS TO THIRD PARTY SITES. You may link to third party sites through the
use of the SOFTWARE PRODUCT. The third party sites are not under the control of
Microsoft, and Microsoft is not responsible for the contents of any third party
sites, any links contained in third party sites, or any changes or updates to
third party sites. Microsoft is not responsible for webcasting or any other
form of transmission received from any third party sites. Microsoft is
providing these links to third party sites to you only as a convenience, and the
inclusion of any link does not imply an endorsement by Microsoft of the third
party site.
4. U.S. GOVERNMENT LICENSE RIGHTS. SOFTWARE PRODUCT provided to the U.S.
Government pursuant to solicitations issued on or after December 1, 1995 is
provided with the commercial license rights and restriction described elsewhere
herein. SOFTWARE PRODUCT provided to the U.S. Government pursuant to
solicitations issued prior to December 1, 1995 is provided with "Restricted
Rights" as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or XXXX, 00 XXX
252.227-7013 (OCT 1988), as applicable.
5. EXPORT RESTRICTIONS. You acknowledge that the SOFTWARE PRODUCT is subject to
U.S. export jurisdiction. You agree to comply with all applicable international
and national laws that apply to the SOFTWARE PRODUCT, including the U.S. Export
Administration Regulations, as well as end-user, end-use and country
destination restrictions issued by U.S. and other governments. For additional
information on exporting Microsoft products, see
xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxx//.
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6. DISCLAIMER OF WARRANTIES. To the maximum extent permitted by applicable
law, Microsoft and its suppliers provide the SOFTWARE PRODUCT and support
services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other
warranties and conditions, whether express, implied, or statutory, including,
but not limited to, any (if any) implied warranties, duties or conditions of
merchantability, of fitness for a particular purpose, of reliability or
availability, of accuracy or completeness of responses, of results, of
workmanlike effort, of lack of viruses, and of lack of negligence, all with
regard to the SOFTWARE PRODUCT, and the provision of or failure to provide
support or other services, information, software, and related content through
the SOFTWARE PRODUCT or otherwise arising out of the use of the SOFTWARE
PRODUCT. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT,
QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD
TO THE SOFTWARE PRODUCT.
7. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS
SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR
CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR
LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION,
FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING
OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY
OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR
INABILITY TO USE THE SOFTWARE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE
SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH
THE SOFTWARE PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE
PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS XXXX,
EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
BREACH OF CONTRACT, OR BREACH OF WARRANTY OF MICROSOFT OR ANY SUPPLIER, AND EVEN
IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
8. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU
MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING) WITHOUT LIMITATION, ALL
DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE
LIABILITY OF MICROSOFT AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS XXXX
AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE
GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OF
U.S.$5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS
ESSENTIAL PURPOSE.
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9. APPLICABLE LAW. If you acquired this SOFTWARE PRODUCT in the United
States, this XXXX is governed by the laws of the State of Washington. If you
acquired this SOFTWARE PRODUCT in Canada, unless expressly prohibited by local
law, this XXXX is governed by the laws in force in the Province of Ontario,
Canada; and, in respect of any dispute which may arise hereunder, you consent
to the jurisdiction of the federal and provincial courts sitting in Xxxxxxx,
Xxxxxxx. If this SOFTWARE PRODUCT was acquired outside the United States, then
local law may apply.
10. ENTIRE AGREEMENT. This XXXX (including any addendum or amendment to this
XXXX which is included with the SOFTWARE PRODUCT) is the entire agreement
between you and Microsoft relating to the SOFTWARE PRODUCT and the Support
Services (if any) and it supersedes all prior or contemporaneous oral or
written communications, proposals and representations with respect to the
SOFTWARE PRODUCT or any other subject matter covered by this XXXX. To the
extent the terms of any Microsoft policies or programs for Support Services
conflict with the terms of this XXXX, the terms of this XXXX shall control.
11. QUESTIONS? Should you have any questions concerning this XXXX, or if you
desire to contact Microsoft for any reason, please contact the Microsoft
subsidiary serving your country, or write: Microsoft Sales Information
Center/One Microsoft Xxx/Xxxxxxx, XX 00000-0000.
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