Contract
EXHIBIT 10(q)
(***) Indicates confidential material that has been omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.
| Amendment Number: | 2 | |||
| Amendment Date: | March 1, 2004 | |||
| COMPANY Name: | STRATUS TECHNOLOGIES, INC. | |||
| MS Agreement Number: | 5129150080 | |||
| Agreement Effective Date: | March 1, 2003 | |||
Amendment to Microsoft License Agreement
For Server Operating System Products
Effective as of the Amendment Date indicated above, each party to the Microsoft License Agreement for Server Products (“License Agreement”) acknowledges and agrees as follows:
| 1. | All references to “MS” contained in the BTD and the License Agreement shall refer to Microsoft Licensing, GP, and this License Agreement may be assigned from Microsoft Licensing, GP to a direct or indirect wholly owned subsidiary of MSCORP. The term “MSCORP Licensing Subsidiaries,” to the extent used in the BTD, shall mean Microsoft Licensing, Inc., Microsoft Licensing, GP and any assignee of Microsoft Licensing, GP. |
| 2. | The terms “end user”, “customer”, “end user customer”, and “End User Customer” shall mean with respect to each Product, a person, company or other legal entity that acquires a Customer System for use of such Product in accordance with the applicable XXXX. |
| 3. | Section 4 is amended to read as follows: |
“The term of this License Agreement shall run from the License Effective Date until July 31, 2004.”
| 4. | The SHIPPING AND BILLING ADDRESS SCHEDULE is deleted in its entirety and replaced with the attached SHIPPING AND BILLING ADDRESS SCHEDULE. |
| 5. | The MINIMUM COMMITMENT SCHEDULE is deleted in its entirety and replaced with the attached MINIMUM COMMITMENT SCHEDULE. |
| 6. | The Product Schedule 2—Server Products is deleted in its entirety and replaced with the attached Product Schedule 2—Server Products. |
All capitalized terms shall have the same meanings as defined in the License Agreement. The terms of this Amendment shall supersede any inconsistent terms contained in the License Agreement. Upon execution by both COMPANY and MS, the License Agreement (including the BTD incorporated therein) together with this amendment, shall constitute the entire agreement between COMPANY and MS, merging all prior and contemporaneous communications. Except as otherwise expressly provided herein, the License Agreement, as amended hereby, shall not be modified except by a written amendment signed on behalf of COMPANY and MS by their respective duly authorized representatives.
By signing below, each party acknowledges that it has read and understood, and will act in accordance with, all of the terms set forth in the attached documents.
| MICROSOFT LICENSING, GP A general partnership organized under the laws of: State of Nevada, U.S.A. |
STRATUS TECHNOLOGIES, INC. A company organized under the laws of: State of Delaware, U.S.A. | |||||||
| By: |
/s/ XXXXXX XXXXXXX |
By: | /s/ XXXXX X. XXXXXX | |||||
| (signature) | (signature) | |||||||
| Name: |
XXXXXX XXXXXXX |
Name: |
XXXXX X. XXXXXX | |||||
| (printed) | (printed) | |||||||
| Title: |
OEM ACCOUNTING MANAGER |
Title: |
SVP WORLDWIDE MARKETING | |||||
| (printed) | (printed) | |||||||
| Date: |
April 01, 2004 |
Date: |
3/22/2004 | |||||
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SHIPPING AND BILLING ADDRESS SCHEDULE
| COMPANY “Ship To” Address(es): | COMPANY Billing Address: | |
| Xxxxx Xxxxxx Manager, ISV Relations STRATUS TECHNOLOGIES, INC. 000 Xxxxxxxxxx Xxxx Xxxxxxx, XX 00000 XXXXXX XXXXXX
Telephone: 000-000-0000 Fax: 000-000-0000 E-mail: xxxxx_xxxxxx@xxxxxxx.xxx |
Xxxxx Xxxxxxx Procurement STRATUS TECHNOLOGIES. INC. 000 Xxxxxxxxxx Xxxx Xxxxxxx, XX 00000-0000 XXXXXX XXXXXX
Telephone: 000-000-0000 Fax: 000-000-0000 E-mail: xxxxx.xxxxxxx@xxxxxxx.xxx | |
| Or to such other COMPANY and/or COMPANY Subsidiary address(es) as COMPANY may specify in writing from time to time. |
Or to such other COMPANY address as COMPANY may specify in writing from time to time. | |
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MINIMUM COMMITMENT SCHEDULE
| Date |
Payment Amount (US$) |
Cumulative Amount of Payments for Period (US$) | ||
| Signing of License Agreement (payment due upon signing) |
US$(***) | US$(***) | ||
| March 31, 2003 |
US$(***) | US$(***) | ||
| June 30, 2003 |
US$(***) | US$(***) | ||
| September 30, 2003 |
US$(***) | US$(***) | ||
| December 31, 2003 |
US$(***) | US$(***) | ||
| March 31, 2004 |
US$(***) | US$(***) | ||
| July 31, 2004 |
US$(***) | US$(***) | ||
| Total Minimum Commitment |
US$(***) | US$(***) |
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PRODUCT SCHEDULE -2
SERVER PRODUCTS
(Processor Version: Pentium or Itanium, or Comparable)
PRODUCT TABLE
| Product # |
Product Name and Version* |
Language Versions** |
Applicable Additional Provisions |
Royalty*** |
Basis |
Billing Type**** | ||||||
| 18389 | Microsoft® Windows® Server 2003, 32-bit Enterprise Edition (1-8 Processor Version, 25 CAL Version) |
CS, DE, EN, ES, FR, HU, IT, JA, KO, NL, PL, PT, RU, SV, TR, XC, XT, ZH |
(26), (57), (59), (62), (64), (395), (549), (550), (599), (659), (827), (828), (829), (830), (899), (1001) |
US$(***) | Per (***) | Type (***) | ||||||
| 18473 | Microsoft® Windows® Server 2003, 32-bit Enterprise Edition (1-2 Processor Version, 25 CAL Version) |
DE, EN, ES, FR, JA, KO, XT, ZH |
(26), (57), (59), (62), (64), (395), (549), (550), (599), (659), (827), (828), (829), (830), (899), (1001) |
US$(***) | Per (***) | Type (***) | ||||||
| 18917 | Microsoft® Windows® Server 2003, Enterprise Edition for 64-bit Itanium®-based systems (1-8 Processor Version, 25 CAL Version) |
DE, EN, FR, JA | (26), (57), (58), (59), (62), (64), (395), (549), (550), (659), (827), (828), (829), (830) |
US$(***) | Per (***) | Type (***) | ||||||
| 13351 | Microsoft® Windows® 2000 Advanced Server (1-8 Processor, 25 CAL Version) |
DE, EN, ES, FR, JA, KO, XT, ZH |
(26), (57), (59), (62), (64), (395), (549), (550), (659), (724), (827), (830), (899), (989), 1001) |
US$(***) | Per (***) | Type (***) | ||||||
| 13797 | Microsoft® Client Access License Pack for Microsoft® Windows® 2000 Server Products (5 CAL Version) |
EN | (395), (430), (989) | US$(***) | Per (***) | Type (***) | ||||||
| 18379 | Microsoft® Device Access License Pack for Windows® Server 2003 Products, (5 Device CAL Version) |
EN | (395), (831) | US$(***) | Per (***) | Type (***) | ||||||
| 18380 | Microsoft® User Client Access License Pack for Microsoft® Windows® Server 2003 Products (5 User CAL Version) |
EN | (395), (831) | US$(***) | Per (***) | Type (***) |
| ** | Language Version Key: Please refer to the Language Version Key in the OEM Resource Guide for explanation of Language Version codes. Localized versions are licensed on an if and as available basis. |
| *** | A Product is not licensed hereunder unless royalty rate(s) are indicated in the Product Table and the Product is licensed for one or more Customer System(s) described in the Customer System section of this License Agreement. |
| **** | Billing Type: “Type II” means OEM Report—based on COMPANY royalty reports, “Type I” means Shipment—based on shipments to COMPANY by MS or AR. |
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ADDITIONAL PROVISIONS
(Note: Only those Additional Provisions applicable to licensed Product(s) may appear. Section numbering may not be consecutive.)
(26) COMPANY may install one or more language versions (listed in the Language Version box above) of Product software with each applicable Customer System provided COMPANY shall;
(i) use a utility which allows the end user to choose one (1), and only one (1), language version of Product for the Customer System. Any backup or recovery copy of the Product shall give end users access to install or recover only one (1) language version of the Product;
(ii) clearly indicate to end users, including without limitation, in advertising and on Customer System packaging that shall be translated and adapted as necessary for any region to which COMPANY distributes the Product, that end users shall have, access to one (1) language version only;
(iii) defend MS and MSCORP against, and pay the amount of any final adverse judgment (or settlement to which COMPANY consents) arising from third party claims or demands resulting from COMPANY’s failure to adequately inform end users receiving multiple language versions that they are not entitled to use more than one (1) language version of the Product; and
(iv) pay the highest royalty applicable to the language versions distributed.
COMPANY may distribute more than one (1) language version of the APM, excluding any recovery or external media, with the Product; provided that COMPANY has installed such language version on the Customer System.
(57) In order to support end users of the Product. COMPANY agrees to employ at all times at least one support technician who has successfully completed, at COMPANY’s expense, the Microsoft Certified Professional program for the licensed version of the Product (or if applicable, for the Windows server operating system component), or if not available, then the Microsoft Certified Professional program for Windows 2000 server operating systems.
(58) At present, the XXXX for the Product provides for a specified number of Client Access Licenses (“CALs”). The number of CALs determines the maximum number of computers or workstations connected to the Customer System(s) which may access certain basic network services as described in the XXXX. The number of CALs included for the Product is indicated in the Product Table above.
(59) Though the OPK for the Product may include versions of the Product designed for various microprocessor architectures, COMPANY is licensed to distribute the Product only with and for use on Customer System(s) based on the microprocessor architecture specified at the top of the Product Schedule.
(62) (a) If a Customer System(s) is licensed on a per system basis for the Product and for one or more other MS operating system products, then COMPANY shall pay MS the royalty for the MS operating system product distributed with such Customer System(s), or in the event no MS operating system product is distributed with such Customer System(s), COMPANY shall pay MS the highest royalty applicable to any licensed language or regional versions of the MS operating system product with the lowest royalty rate(s) that is licensed on a per system basis with such Customer System(s).
(b) COMPANY may not distribute both the Product and any other MS operating system product with the same Customer System(s).
(64) COMPANY is not licensed to distribute a processor version of the Product on a Customer System that includes more processors than the highest number of processors listed for such version in the Product Table. For purposes of this License Agreement, “processor” means a physical processor or central processing unit (CPU).
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(393) COMPANY’s license for the Product is being entered into in connection with (i) a Microsoft Gold Certified Partner for Support Services Center for Datacenter agreement and/or addendum between COMPANY and MSCORP (“MGSC Datacenter Addendum”) or an equivalent joint support and services program for the Product defined by MSCORP, and (ii) (A) the Windows 2003 Datacenter Hardware Compatibility Test (“Windows 2003 Datacenter HCT”) specifications or the Enterprise Qualification Program (“EQP”) specifications for Windows Server 2003, Datacenter Edition, or (B) the Datacenter Hardware Compatibility Test (“Windows 2000 Datacenter HCT”) specifications for Windows 2000 Datacenter Server, as applicable, as made available by MSCORP.
(394) (a) Notwithstanding anything to the contrary in the License Agreement, COMPANY shall not distribute Updates (as defined below) to end users of Customer Systems distributed with the Product except pursuant to one or more current and valid Update Subscriptions for the applicable Product as described in this Additional Provision.
(b) For purposes of this Additional Provision:
(i) “Distribution Date” shall mean the date the Product (but excluding an upgrade version of the Product) was distributed by COMPANY to the end user.
(ii) “Designated System” shall mean a Customer System on which is installed the listed processor version of the referenced Product or a Combination (as defined in Additional Provision 684), to which one or more Update Subscriptions are designated.
(iii) “Update Subscription” shall be authorization for COMPANY to distribute Updates to an end user for installation on one (1) Designated System during the term of the Update Subscription.
(iv) “Updates” shall mean Supplements and releases for the Product, if and as licensed to COMPANY.
(c) (i) To be valid and effective, one or more Update Subscriptions for the corresponding processor version of the Product or Combination shall have been in effect for each month since the Distribution Date.
(ii) If an Update Subscription is acquired after the Distribution Date, COMPANY also shall report and pay MS Update Subscription royalties for each month from and including the Distribution Date through the date end user first acquires an Update Subscription for the Designated System. For example, if an Update Subscription is acquired six (6) months after the Distribution Date, COMPANY would report and pay royalties for seven (7) months, i.e., royalties for the current month and the prior six (6) months. If the Designated System originally was distributed with a lower processor version of the Product or a Combination, and later upgraded to a higher processor version of the Product or a Combination, then royalties for the prior months shall be calculated based on the Update Subscription(s) for the lower processor version of the referenced Product or Combination.
(d) During the term of a current and valid Update Subscription:
(i) COMPANY shall distribute Updates to that end user for deployment on one (1) Designated System installed with the corresponding processor version of the referenced Product or a Combination, provided however, COMPANY may distribute Updates to an end user only if and for so long as COMPANY continues to offer technical support for the Designated System on which the Update will be deployed.
(ii) COMPANY shall indicate to the end user whether the end user’s Designated System would pass (A) the then current Windows 2003 Datacenter HCT or EQP specifications for Windows Server 2003, Datacenter Edition or (B) the then current Windows 2000 Datacenter HCT specifications for Windows 2000 Datacenter, as applicable, if the Updates are installed.
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(e) (i) Notwithstanding anything to the contrary in the License Agreement, Updates described in this Additional Provision may be distributed to end users separate from a Customer System as follows:
(A) An Update that includes an operational copy of a licensed Product shall be BIOS-locked (applies only to the 32-bit version of the Product) and distributed only on COMPANY-branded external media or via a COMPANY, restricted access web site.
(B) An Update that does not include an operational copy of a licensed Product may be BIOS-locked (applies only to the 32-bit version of the Product) and shall be distributed only on COMPANY branded external media or via a COMPANY, restricted access web site.
(ii) An Update shall be provided to the end user with the XXXX included with the Update as delivered to COMPANY by MS.
(f) For each Update Subscription, COMPANY shall maintain records by end user customer, the Product identification number, configuration and acquisition date of the Designated System, and the purchase date of each Update Subscription for the Designated System. COMPANY shall provide such information to MS on a monthly basis.
(g) Notwithstanding anything to the contrary in this Additional Provision, COMPANY may distribute Updates to an end user of a Customer System installed with a Combination, provided that the total number of processors of such Combination does not exceed the total number of processors of the current and valid Update Subscription(s) designated to such Customer System.
(395) MS will provide to COMPANY OEM Sales-Out Reporting Guidelines, which may be revised from time to time during the term of this License Agreement. COMPANY shall provide, on a monthly basis, customer sales reports for the Product (“Sales-Out Reports”), which shall include all information required by the then current OEM Sales-Out Reporting Guidelines. COMPANY shall take all steps necessary to ensure that COMPANY’s collection and provision of information contained in the Sales-Out Reports will comply with all applicable national data protection laws. In addition, if an end user customer is an individual, COMPANY shall notify and obtain permission from the end user for transfer and use of information by MS. If permission is not obtained, COMPANY shall report the name and address for the business organization with which the individual is affiliated (if any), and shall not report such information for the individual.
(427) (a) Notwithstanding anything to the contrary in this License Agreement, COMPANY may distribute this Product with a Customer System to be installed at the end user’s location, but only if the following conditions are met:
(i) the Customer System on which the Product is to be installed passes (A) the then current Windows 2003 Datacenter HCT or EQP specifications for Windows Server 2003, Datacenter Edition or (B) the then current Windows 2000 Datacenter HCT specifications for Windows 2000 Datacenter, as applicable, as described in Additional Provision (435);
(ii) the Product is BIOS-locked (applies only to the 32-bit version of the Product) and provided to the end user on COMPANY-branded external media;
(iii) the Product is installed only on the Customer System by either (i) a COMPANY technician or (ii) the end user pursuant to COMPANY’s instructions; and
(iv) the Customer System, as installed with the Product, shall be in compliance with all terms and conditions set forth in this License Agreement, including without limitation, carrying the COA sticker for the Product.
(b) COMPANY also may distribute the Product directly to an existing end user of a previously distributed Customer System subject to the same conditions as set forth in subsection (a) of this Additional Provision, provided that such Customer System shall have been previously installed and used with validly licensed operating system software.
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(428) (a) COMPANY shall ensure that each Customer System (as installed and configured for end user operation with the Product and all other software and/or hardware installed on the Customer System) meets the specifications set forth in (A) the then current Windows 2003 Datacenter HCT or EQP for Windows Server 2003, Datacenter Edition or (B) the then current Windows 2000 Datacenter HCT for Windows 2000 Datacenter Server, as applicable, regardless of where the Product was installed.
(b) (i) Except as described below (or otherwise as permitted in writing by MS), all tools provided by MS to COMPANY in connection with the license for the Product may be accessed and used only by COMPANY.
(ii) For the Windows 2000 Datacenter Products Only, the OPKs include a Windows 2000 Datacenter Server checked version of the Product (“Datacenter Checked CD”), a support tool that provides diagnostic and debugging information on the Windows 2000 Datacenter Product running on a Customer System. If and as specifically approved by MS on a case-by-case basis, COMPANY may provide an end user with individual check files from the Datacenter Checked CD solely to support diagnosis and debugging of the Windows 2000 Datacenter Product running on the end user’s Customer System.
(429) (a) For any Product software which may be distributed on external media by COMPANY to end users, such external media, including all locking technology used by COMPANY thereon, shall comply with specifications as provided in the OEM Resource Guide (applies only to the 32-bit version of the Product), and shall be reproduced only by an Authorized Replicator.
(b) For any Product software which may be made available by COMPANY to end users via a COMPANY restricted Web site, COMPANY shall ensure that only the intended end users are able to access and download such software.
(430) COMPANY may distribute Client Access License Packs for Windows 2000 Server Products only (i) packaged with new Customer Systems distributed with a Windows 2000 Server Product or (ii) to existing end users of previously distributed Customer Systems on which a Windows 2000 Server Product is installed.
(435) The Product may only be distributed with or installed on a Customer System that has passed (A) the then current Windows 2003 Datacenter HCT or EQP for Windows Server 2003, Datacenter Edition or (B) the then current Windows 2000 Datacenter HCT for Windows 2000 Datacenter, as applicable, as follows;
(a) If a new Customer System (or a new configuration of an existing Customer System) is to be distributed or installed with the then current release of the Product, that Customer System shall pass (A) the then current Windows 2003 Datacenter HCT or EQP for Windows Server 2003, Datacenter Edition or (B) the then current Windows 2000 Datacenter HCT for Windows 2000 Datacenter, as applicable.
(b) If a new Customer System (or a new configuration of an existing Customer System) is to be distributed or installed with a prior version of the Product, that Customer System shall pass (A) the most current Windows 2003 Datacenter HCT or EQP for Windows Server 2003, Datacenter Edition or (B) the most current Windows 2000 Datacenter HCT for Windows 2000 Datacenter Server, as applicable, for that version of the Product (including Service Packs and other Updates). For example, if a new Customer System is to be distributed or installed with a prior version of the Product including Service Pack 1, that Customer System must pass the most current Datacenter HCT in effect for Service Pack 1.
(436) COMPANY shall distribute or install Customer Systems with the Product only to or at locations for which COMPANY meets and continues to meet the requirements set forth in the MGSC Datacenter Addendum (or an alternate joint support and services program defined by MSCORP) as may be modified from time to time.
(437) (a) “(***)” is the (***) or (***) of at least the (***) units, (***), and (***) resources of a Customer System into (***) units, such that (***) (a “(***)”) is (***) of (***) of the Product. A Customer System that
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contains (***) (“(***) Customer System”) may be installed with (***) than (***) of the Product on (***) and the (***) of (***) of the Product (***) shall (***) (***) of (***) included in the (***) Customer System.
(b) COMPANY is not licensed to distribute a processor version of the Product on (***) Customer System (***) the (***) of (***) supporting (***) the Product is (***) the (***) of (***) listed for (***) in the Product table above.
(c) Notwithstanding anything to the contrary in this License Agreement, if COMPANY distributes the Product installed or to be installed on (***) of a (***) Customer System, COMPANY is not required to (***) than (***) of (***) for the Product with (***) Customer System.
(438) (a) Except as described in subsection (b) below, COMPANY shall distribute the Product (***) Customer Systems (***) are (***) of (***) in a (***). Furthermore, the (***) of (***) in the (***) of the Product COMPANY (***) with a Customer System shall (***).
(b) (i) COMPANY also may (***) the Product with a (***) Customer System that is (***) of (***) in an (***) or (***). For purposes of this Additional Provision, (***) Customer System shall mean a Customer System that (A) incorporates either redundant or doubly redundant hardware, and which (***) is (***) by having the (***) in (***) (or (***))(***), and (B) does not (***).
(ii) For purposes of this subsection (b) only, a (***) Customer System may be (***) or (***) of a (***) or (***) and (***) as a (***) Customer System. For (***) Customer Systems that (***) of (***), (A) COMPANY may (***) than (***) of the Product for (***) or (***) on (***), (B) the (***) in Additional Provision (***) shall be (***) on the (***) of (***) in the (***), (C) the (***) shall not include (***), and (D) each (***) is (***) of (***) at (***) in an (***) or (***).
(iii) For purposes of (***) the (***) of (***) in a (***) Customer System, (***) in an (***) or (***) is (***) as (***) and (***) is (***) as (***).
(439) COMPANY shall offer to end users a “change management” service that would enable periodic upgrades of a Customer System distributed with the Product to a later, more current Customer System configuration that meets the specifications described in the then current Windows 2003 Datacenter HCT or EQP specifications for Windows Server 2003, Datacenter Edition or the then current Windows 2000 Datacenter HCT specifications for Windows 2000 Datacenter, as applicable, as described in Additional Provision 435. COMPANY may provide Updates to end users only pursuant to a current and valid Update Subscription for the applicable Product, and may provide Maintenance Updates to end users only pursuant to a current and valid Maintenance Subscription for the applicable Product.
(549) (a) Except as described in subsection (b) below, COMPANY shall distribute the Product only with Customer Systems (***) of (***) up to, and (***) in a (***).
(b) (i) COMPANY also may (***) the Product with a (***) Customer System that is (***) with and (***) to, and (***), (A) for a (***) in an (***) or (***) or (B) for a (***) in an (***) or (***). For purposes of this Additional Provision, a (***) Customer System shall mean a Customer System that (A) (***) or (***) and which (***) is (***) by (***) the (***) in (***) (or (***))(***), and (B) does not (***).
(ii) For purposes of this subsection (b) only, a “(***)” Customer System (***) be a (***) or (***) of (***) of (***) or (***) and (***) a (***) Customer System. For “(***)” Customer Systems that (***) of (***), (A) COMPANY may preinstall (***) of the Product for (***) or (***) on (***), (B) the (***) described in Additional Provision (***) shall be (***) on the (***) of (***) in the (***), (C) the (***) shall (***) include (***), and (D) each (***) is (***) of (***) at (***) in (***) or (***).
(iii) For (***) of (***) the (***) of (***) in a “(***)” Customer System, (***) in an (***) or (***) is (***) and (***) or (***) is (***) as (***). Notwithstanding the foregoing, in no event shall the Product be
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(***) for: (a) use (***) a “(***)” Customer System with (***) in an (***) or (***) for Windows (***), or (b) use in a (***) Customer System (***) in an (***) or (***) for Windows (***).
(550) (a) “(***)” is the (***) or (***) of (***) the (***), and (***) of a Customer System into (***), such that (***) (a “(***)”) is (***) of (***) of the Product.
(b) A Customer System that (***) (“(***) Customer System”) may be (***) with (***) of the Product on a (***). COMPANY shall (***) and (***) for (***) of the Product whether the Product is (***) by COMPANY or by an end user customer (if authorized by this License Agreement). COMPANY is responsible for instructing such end user customer that it may install (***) than (***) of Product for which COMPANY (***).
(c) COMPANY is (***) to (***) a (***) of the Product on a (***) Customer System (***) the (***) of (***) a (***) the Product is (***) the (***) of (***) listed for (***) in the Product Table above.
(d) Notwithstanding anything to the contrary in this License Agreement, if COMPANY distributes the Product installed or to be installed on (***) of a (***) Customer System, COMPANY is not required to (***) more than (***) of APM for the Product with (***) Customer System.
(599) Under the terms of the XXXX, use of the Product will be limited to the first thirty (30) days after the end user first launches the Product, unless (i) the end user activates the Product with MSCORP in the manner described in the Product during launch or (ii) COMPANY has used the system locked preinstallation tool (the “SLP tool”) contained in the OPK to bypass the activation feature of the Product. Unless COMPANY has properly used the SLP tool on both the preinstalled image and recovery media, COMPANY shall provide the following or substantially similar notice in a clear and conspicuous manner to end users prior to their acquiring the Product (e.g., in advertisements, Customer System packaging or point of purchase materials):
“Certain Microsoft® software product(s) included with this computer may use technological measures for copy protection. IN SUCH EVENT, YOU WILL NOT BE ABLE TO USE THE PRODUCT IF YOU DO NOT FULLY COMPLY WITH THE PRODUCT ACTIVATION PROCEDURES. Product activation procedures and Microsoft’s privacy policy will be detailed during initial launch of the product, or upon certain reinstallation of the software product(s) or reconfigurations of this computer, and may be completed by Internet or telephone (toll charges may apply).”
COMPANY shall defend MS and MSCORP, and pay the amount of any final adverse judgment (or settlement to which COMPANY consents) arising from third party claims or demands resulting from COMPANY’s failure to provide the notice as required above.
(659) In lieu of preinstalling the Product software pursuant to Sections 2(a)(ii)(l) and (2) of this License Agreement, COMPANY may distribute one (1) copy of the Product software on COMPANY-branded external media (i.e., diskette or CD-ROM) inside the Customer System package for (i) installation by COMPANY on the Customer System at the end user’s location; or (ii) installation by COMPANY’s end user customer on the Customer System pursuant to COMPANY’s instructions, which shall be consistent with this License Agreement. For the 32-bit version of the Product, COMPANY shall ensure that such copy of the Product software on external media is BIOS-locked in accordance with the specifications set forth in the OEM Resource Guide. Furthermore, for the 32-bit version of the Windows Server 2003 Product, COMPANY shall ensure that such copy of the Product software on external media also either (i) requires activation or (ii) is system locked using the SLP tool as described in Additional Provision 599.
(684) Notwithstanding anything to the contrary in this License Agreement, COMPANY may distribute any combination of different processor versions of the Product (“Combination”) with a Customer System, provided that the aggregate number of processors included in the Customer System does not exceed the total number of processors for such Combination. With respect to a Partitioned Customer System, COMPANY may distribute
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any Combination with a Partitioned Customer System, provided that the aggregate number of processors supporting Partitions running the Product does not exceed the total number of processors for such Combination.
(724) COMPANY may pre-populate the Product key on behalf of the end user provided that (i) such Product key matches the unique number provided by MS to COMPANY for COMPANY’s preinstallation of the Product, (ii) the Customer System is designed to be used without a monitor, keyboard and mouse, and (iii) the Terminal Services Licensing service is not installed, unless this service is installed at the end user customer’s request as part of an Image in accordance with Section 2(h) of this License Agreement.
(725) If repair or a hardware upgrade, at the end user site, of a Customer System currently in use with this Product (“Existing Customer System”) would be impracticable for COMPANY, then COMPANY may completely replace the Existing Customer System (with or without connected peripheral devices) at the end user site with a replacement Customer System (“Replacement Customer System”), provided that:
(a) COMPANY moves all installed copies of the Product from the Existing Customer System to the Replacement Customer System;
(b) COMPANY completely removes all installed copies of the Product from the Existing Customer System;
(c) The Replacement Customer System passes (A) the same, most current Windows 2003 Datacenter HTC or EQP for Windows Server 2003, Datacenter Edition or (B) the same, most current Windows 2000 Datacenter HCT for Windows 2000 Datacenter, as applicable, the Existing Customer System passed;
(d) COMPANY affixes new COA(s) on the Replacement Customer System corresponding to the processor version(s) of the Product moved from the Existing Customer System to the Replacement Customer System and such other processor version(s) of the Product COMPANY installs on the Replacement Customer System;
(e) COMPANY pays MS the royalties for the processor version(s) of the Product installed on the Replacement Customer System; and
(f) COMPANY advises the end user of the Replacement Customer System that the term “COMPUTER” in the XXXX for the Product shall mean the Replacement Customer System.
COMPANY may request a credit for the COA(s) for the Product affixed to the Existing Customer System, and MS will apply such credit, subject to the terms and conditions of Section 3(g) of the BTD.
(728) The billing type for this Product is Type (***). MS may change the billing type for this Product to Type (***) upon at least sixty (60) days prior written notice to COMPANY. Not later than fifteen (15) days after the effective date of the change to Type (***), COMPANY shall provide an inventory report to MS, in the format provided by MS, indicating all COAs for the Product, if any, received by, and/or in transit to, COMPANY from an AR but which have not been distributed and reported by COMPANY. COMPANY shall pay any royalties due for the Product in accordance with Section 3(b) of the License Agreement.
(729) The Product is designed for use with Windows NT Workstation Version 4.0 (with Service Pack 6a or later), Server Version 4.0 (with Service Pack 6a or later), Windows NT Server Enterprise Edition Version 4.0 (with Service Pack 6a or later), Windows 2000 Professional, Windows 2000 Server, Windows 2000 Advanced Server, or Windows XP Professional. The Product may not function properly with other operating system products.
(782) (a) Notwithstanding anything to the contrary in the License Agreement, COMPANY shall not distribute Maintenance Updates (as defined below) to end users of Customer Systems distributed with the Product (i.e., Windows 2000 Datacenter Server) except pursuant to one or more current and valid Maintenance Subscriptions for the applicable Product as described in this Additional Provision.
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(b) For purposes of this Additional Provision:
(i) “Distribution Date” shall mean the date the Product (but excluding an upgrade version of the Product) was distributed by COMPANY to the end user.
(ii) “Designated System” shall mean a Customer System on which is installed the listed processor version of the referenced Product or a Combination (as defined in Additional Provision 684), to which one or more Maintenance Subscriptions are designated.
(iii) “Maintenance Subscription” shall be authorization for COMPANY to distribute Maintenance Updates to an end user for installation on one (1) Designated System during the term of the Maintenance Subscription.
(iv) “Maintenance Updates” shall mean Supplements for the Product, if and as licensed to COMPANY.
(c) (i) To be valid and effective, one or more Maintenance Subscriptions for the corresponding processor version of the Product or Combination shall have been in effect for each month since the Distribution Date.
(ii) If a Maintenance Subscription is acquired after the Distribution Date, COMPANY also shall report and pay MS Maintenance Subscription royalties for each month from and including the Distribution Date through the date end user first acquires a Maintenance Subscription for the Designated System. For example, if a Maintenance Subscription is acquired six (6) months alter the Distribution Date, COMPANY would report and pay royalties for seven (7) months, i.e., royalties for the current month and the prior six (6) months. If the Designated System originally was distributed with a lower processor version of the Product or a Combination, and later upgraded to a higher processor version of the Product or a Combination, then royalties for the prior months shall be calculated based on the Maintenance Subscription(s) for the lower processor version of the referenced Product or Combination.
(d) During the term of a current and valid Maintenance Subscription:
(i) COMPANY shall distribute Maintenance Updates to that end user for deployment on one (1) Designated System installed with the corresponding processor version of the referenced Product or a Combination, provided however, COMPANY may distribute Maintenance Updates to an end user only if and for so long as COMPANY continues to offer technical support for the Designated System on which the Maintenance Update will be deployed.
(ii) COMPANY shall indicate to the end user whether the end user’s Designated System would pass (A) the then current Windows 2003 Datacenter HCT or EQP specifications for Windows Server 2003, Datacenter Edition or (B) the then current Windows 2000 Datacenter HCT specifications for Windows 2000 Datacenter, as applicable, if the Maintenance Updates are installed.
(e) (i) Notwithstanding anything to the contrary in the License Agreement, Maintenance Updates described in this Additional Provision may be distributed to end users separate from a Customer System as follows:
(A) A Maintenance Update that includes an operational copy of a licensed Product shall be BIOS-locked (applies only to the 32-bit version of the Product) and distributed only on COMPANY-branded external media or via a COMPANY, restricted access web site.
(B) A Maintenance Update that does not include an operational copy of a licensed Product may be BIOS-locked (applies only to the 32-bit version of the Product) and shall be distributed only on COMPANY branded external media or via a COMPANY, restricted access web site.
(ii) A Maintenance Update shall be provided to the end user with the XXXX included with the Maintenance Update as delivered to COMPANY by MS.
(f) For each Maintenance Subscription, COMPANY shall maintain records by end user customer, the Product identification number, configuration and acquisition date of the Designated System, and the purchase
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date of each Maintenance Subscription for the Designated System. COMPANY shall provide such information to MS on a monthly basis.
(g) Notwithstanding anything to the contrary in this Additional Provision, COMPANY may distribute Maintenance Updates to an end user of a Customer System installed with a Combination, provided that the total number of processors of such Combination does not exceed the total number of processors of the current and valid Maintenance Subscription(s) designated to such Customer System.
(827) The OPK for the Product includes Customer Support Diagnostics Tools (“CSD”), which provide diagnostic and debugging information on the Product running on a Customer System. COMPANY may (i) install CSD as part of the Product, (ii) distribute CSD on external media inside the Customer System package, or (iii) provide CSD on external media to an existing end user of a Customer System installed with the Product. COMPANY may distribute not more than one (1) copy of CSD) for each copy of the Product distributed. CSD on external media shall be reproduced only by an AR.
(828) The OPK for the Product includes Windows Systems Resource Manager (“WSRM”), which enables resource administration of the Product. COMPANY may (i) install WSRM as part of the Product, (ii) distribute WSRM on external media inside the Customer System package, or (iii) provide WSRM on external media to an existing end user of a Customer System installed with the Product. COMPANY may distribute not more than one (1) copy of WSRM for each copy of the Product distributed. WSRM on external media shall be reproduced only by an AR.
(829) This Product includes the number of Client Access Licenses (“CALs”) indicated in the Product Table above.
(830) (a) COMPANY may grant an end user who acquires a new, COMPANY-branded Customer System distributed with a version of this Product that has been updated to include one or more Supplements or is a custom image (“New Product”) the right to install and use a copy of the New Product on its previously acquired, COMPANY-branded Customer System(s) installed with an earlier or version of this Product, pursuant to the addendum to the XXXX provided below. If COMPANY elects to grant such rights, COMPANY shall complete and deliver the following addendum to the XXXX for the New Product to such end user:
Addendum to the End User License Agreement for <<COMPANY to fill in full name of the New Product>> (“XXXX”)
This addendum (“Addendum”) provides additional rights with respect to the Server Software portion of the software product identified above as licensed to you by Manufacturer. By installing, copying or otherwise using the Server Software as described below, you agree to be bound by the terms set forth below. If you do not agree to be bound by these terms, you may not install the Server Software as described below. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the XXXX.
ADDITIONAL RIGHTS. In addition to the rights and restrictions stated in the XXXX, Manufacturer grants you the following rights;
You may install, use, access, display and run one copy of the Server Software on each of your existing <<COMPANY to fill out Customer System model name/number>> servers (each an “Other Server”) in lieu of the copy of <<COMPANY to fill out full name of the Product>> you acquired with the Other Server (“Other Copy”), provided that (i) the Other Server carries Manufacturer’s brand name, (ii) the Other Copy is validly licensed to you with the Other Server under an end user license agreement between you and Manufacturer and (iii) you remove the Other Copy from the Other Server. Your use of the Server Software on the Other Server is subject to the terms of the XXXX.
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(b) COMPANY shall keep records relating to the number of licenses granted under subsection (a) above. COMPANY shall provide such records to MS upon MS’ request.
(831) COMPANY may distribute Client Access License Packs for Windows Server 2003 Products only (i) packaged with new Customer Systems distributed with a Windows Server 2003 Product or (ii) to existing end users of previously distributed Customer Systems on which a Windows Server 2003 Product is installed.
(832) (a) If an end user customer of a Customer System previously distributed with this Product is exercising its “Use of Previous Version of the Software” right granted in the XXXX for this Product and such end user customer has accepted the terms of such XXXX, then, upon such end user customer’s request, COMPANY may distribute directly to such end user customer one (1) copy of the corresponding processor version(s) of Windows 2000 Datacenter Server on external media, provided (i) COMPANY is licensed for such processor version(s) and release of Windows 2000 Datacenter Server, (ii) COMPANY has certified the use of Windows 2000 Datacenter Server on such end user customer’s Customer System, (iii) COMPANY acquires a non-royalty bearing COA for the applicable processor version(s) of Windows 2000 Datacenter Server in accordance with the instructions set forth in the product information section of Microsoft OEM Online, and ensures that Such COA is affixed to the end user customer’s Customer System, and (iv) the copy of Windows 2000 Datacenter Server is BIOS-locked. No royalty shall accrue for copies of Windows 2000 Datacenter so distributed, provided that COMPANY distributes such copies of Windows 2000 Datacenter at no charge except for reasonable shipping and handling charges.
(b) If an end user customer of a Customer System previously distributed with the 32-bit or 64-bit version of this Product requests COMPANY to provide pursuant to the XXXX for this Product the 32-bit or 64-bit version of the Product, as applicable, which the end user customer did not initially receive, then, upon such end user customer’s request, COMPANY may distribute directly to such end user customer one (1) copy of the 32-bit or 64-bit version of this Product, as applicable, on external media, provided (i) COMPANY is licensed for the applicable version of the Product, (ii) COMPANY has certified the use of the applicable version of the Product on such end user customer’s Customer System, (iii) COMPANY acquires a non-royalty bearing COA for the applicable version of the Product in accordance with the instructions set forth in the product information section of Microsoft OEM Online, and ensures that such COA is affixed to the end user customer’s Customer System, and (iv) the copy of this Product is BIOS-locked. No royalty shall accrue for copies of the Product so distributed, provided that COMPANY distributes such copies of the Product at no charge except for reasonable shipping and handling charges.
(834) Notwithstanding anything in the License Agreement to the contrary, COMPANY may distribute the Product as an Update pursuant to a current and valid Update Subscription directly to a licensed end user of the corresponding processor version(s) of Windows 2000 Datacenter Server at zero dollar ($0.00) royalty, provided that COMPANY (i) complies with the instructions for such distribution set forth on Microsoft OEM Online, (ii) acquires a non-royalty bearing COA for the Product in accordance with the instructions set forth on Microsoft OEM Online, and ensures that such COA is affixed to the end user customer’s Customer System and (iii) distributes such copies of the Product at no charge except for reasonable shipping and handling charges.
(874) (a) COMPANY shall distribute the Product only with (***) Customer Systems that is (***) with and (***), and (***) in an (***). For purposes of the Additional Provision, a (***) Customer System shall mean a Customer System that (A) (***) and which (***) is (***) by (***) the (***) in (***) (or (***)), (***) and (B) does not (***). For purposes of this subsection (a) only, a (***) Customer System may be (***) or (***) of a (***) of (***) or (***) and (***) as a (***) Customer System.
(b) For (***) Customer Systems that (***) of (***) the following shall apply; (1) COMPANY may (***) of the Product for (***) or (***) on (***), (2) the (***) shall not include (***), (3) the (***) in Additional Provision (***) shall be (***) on the (***) of (***) in the (***). For purposes of (***) the (***) of (***) in a (***) Customer System, (***) in an (***) or (***) is (***) as (***) and (***) or (***) is (***), and (4) each (***) must be (***) of (***) a (***) in an (***) or (***).
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(899) The Traditional Chinese language version for Hong Kong (B3) of this Product may not be directly or indirectly distributed within the geographical boundaries of Taiwan. The Traditional Chinese language version (ZH) of this Product may not be directly or indirectly distributed within the geographical boundaries of the People’s Republic of China (including Hong Kong and Macau). COMPANY shall advise its dealers, distributors and others in its distribution channels of such distribution limitations.
(989) COMPANY’s license to preinstall, copy and/or distribute this Product shall expire on the earlier of (i) October 31, 2004, or (ii) the expiration or termination of this License Agreement.
(1001) Effective May 1, 2004, the billing basis shall change from Per (***) to Per (***), and the associated royalty change shall apply as of such date.
CUSTOMER SYSTEM(s) DEFINITION
COMPANY’s Customer System(s) shall be the assembled computer systems that (i) are described in the table below, (ii) are capable of (A) running a copy of the Product software, (B) processing input, (C) displaying (locally or remotely) the Product user interface, and (iii) include at least a central processing unit, a motherboard, and memory. For each Product which COMPANY chooses to license for distribution with the listed Customer System(s), the letter “s” or “c” in the relevant box indicates whether COMPANY is licensing the Product on a “per system” or “per copy” basis, respectively. New models may be added by agreement of the parties.
At COMPANY’s option, for purposes of administrative convenience, COMPANY may designate models by model line or series, (e.g., “Jaguar model line”, “Jaguar Pro series”, “Jaguar Pro 750 model line”, “Jaguar Pro 950 series”). Customer System(s) defined by model line or series shall include all present models which include the designated model line or series name, (e.g., “Jaguar Pro model line” includes Jaguar Pro, Jaguar Pro 950, Jaguar Pro S; “Jaguar series” includes Jaguar, Jaguar Pro, Jaguar Pro 950, Jaguar S400; “Jaguar Pro 950 series” includes Jaguar Pro 950, Jaguar Pro 955).
COMPANY AND COMPANY SUBSIDIARIES BRAND NAMES AND TRADEMARKS
If COMPANY Customer System(s) are marketed or distributed under COMPANY’s or COMPANY Subsidiaries’ brand names and trademarks, which do not include COMPANY’s name, those brand names and trademarks must be listed below.
Brand Name & Trademarks
Stratus, ftServer
Product Number Key:
| Product Number |
Product Name and Version | |
| 18389 | Microsoft® Windows® Server 2003, 32-bit Enterprise Edition (1-8 Processor Version, 25 CAL Version) | |
| 18473 | Microsoft® Windows® Server 2003, 32-bit Enterprise Edition (1-2 Processor Version, 25 CAL Version) | |
| 18917 | Microsoft® Windows® Server 2003, Enterprise Edition for 64-bit Itanium®-based systems (1-8 Processor Version, 25 CAL Version) | |
| 13351 | Microsoft® Windows® 2000 Advanced Server (1-8 Processor, 25 CAL Version) | |
| 13797 | Microsoft® Client Access License Pack for Microsoft® Windows® 2000 Server Products (5 CAL Version) |
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| Product Number |
Product Name and Version | |
| 18379 | Microsoft® Device Access License Pack for Windows® Server 2003 Products (5 Device CAL Version) | |
| 18380 | Microsoft® User Client Access License Pack for Microsoft® Windows® Server 2003 Products (5 User CAL Version) |
Royalty Basis Key: C = per copy; S = per system; if Product box is blank in the Customer System(s) Table below, such Product is not licensed for distribution with the listed Customer System(s).
CUSTOMER SYSTEM(S) TABLE
| Model |
Processor |
18389 |
18473 |
18917 |
13351 |
13797 |
18379 |
18380 | ||||||||
| ftServer |
PENTIUM III OR COMPARABLE |
(***) | (***) | (***) | (***) | (***) | (***) | (***) |
COMPANY represents and warrants that the names and numbers indicated in the Model Name or Model Number column in the table above accurately denote the actual designation used by COMPANY to identify the listed models (on the Customer System(s) case and in COMPANY’s internal books and records).
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