ROYALTY-FREE CIFS TECHNICAL REFERENCE LICENSE AGREEMENT
For a print version of this license, click here.
This is a legal agreement ("Agreement") between the undersigned individual or entity identified below ("You" or "Company"), and Microsoft Corporation ("Microsoft"). The CIFS Technical Reference (as defined below) is available for You to reference, but if You want to implement the Technical Reference, You must sign and return this Agreement AS IS. If You make any changes to this Agreement, they are expressly rejected and will not be deemed to be included in this Agreement.
Full legal name: __________________________
Organization type:
individual ________________
corporation ______________
partnership_______________
other: ___________________
State/province organized: __________________________
Street address: __________________________
City, state & country: __________________________
DUNS #: __________________________
This Agreement will be effective on the later of the two signature dates below. Send two signed copies of this Agreement, with original signatures, to Microsoft at the address shown in Section 7.3 below.
RECITALS
Whereas, the industry has requested that Microsoft set forth its license terms for CIFS (as defined below);
Whereas, Microsoft is now setting forth those terms by making a license available.
1. Definitions
1.1 "CIFS" shall mean the common internet file system communication protocol described in the Technical Reference.
1.2 "Company Implementation" shall mean only those specific portions of Company Products that implement CIFS for use on Non-Microsoft Platforms and are fully compliant with the Technical Reference.
1.3 “Company Product” means a product branded with a trademark owned or controlled by Company that includes a Company Implementation, either alone or with other components.
1.4 "End User" shall mean a third party customer or potential customer to whom a copy of or access to a product or service is licensed, delivered, or otherwise provided primarily for such customer's or potential customer's use, and not for further sublicense or distribution.
1.5 "Non-Microsoft Platforms" shall mean any platform other than any version of a Microsoft client, embedded and server operating system product, including without limitation, Windows XP, Windows CE, Windows 2000 and Windows 95 operating system products, or successors of those products.
1.6 "Necessary Claims" shall mean those claims of a patent or patent application which (a) are owned, controlled or sublicenseable by Microsoft or Company, as applicable, without payment of a fee to an unaffiliated third party; and (b) are necessarily infringed by implementing the CIFS communication protocol as set forth in the Technical Reference, wherein a claim is necessarily infringed only when there are no technically reasonable alternatives to such infringement. Necessary Claims of Microsoft include, without limitation, United States Patents Nos. 5,265,261 and 5,437,013.
1.7 "Technical Reference" shall mean the Microsoft copyrighted document titled Common Internet File System (CIFS) File Access Protocol version 1.0 found at MSDN Downloads (https://go.microsoft.com/fwlink/?linkid=16880).
1.8 "Term" shall have the meaning assigned to it in Section 6.1.
2. Enhancements and Updates
2.1 Enhancements. Any Microsoft file system protocol enhancements beyond the Technical Reference are not licensed.
2.2 Updates. Updates to the Technical Reference are not licensed. In the event Microsoft elects to provide updates of the Technical Reference to Company, such updates will only be licensed by Microsoft under a separate written agreement or a written amendment to this Agreement.
3. License Grants
3.1 Copyright License. Subject to Section 3.6, Microsoft hereby grants Company a worldwide, royalty-free, non-exclusive, personal, non-transferable, non-sublicensable license to make a reasonable number of complete copies of the Technical Reference for use in developing Company Implementations.
3.2 Patent License. Subject to Sections 3.4 to 3.7, Microsoft hereby grants Company a worldwide, royalty-free, non-exclusive, personal, non-transferable, non-sublicensable, license under its Necessary Claims to make, use, import, offer to sell, sell and distribute, directly or indirectly, to End Users, object code versions of Company Implementations only as incorporated into Company Products and solely for the purpose of complying with the Technical Reference. The above license is limited to implementing the CIFS communication protocol itself, and does not include any express or implied licenses or other rights to any underlying technology (operating system technology, local file system technology, etc.) that may be used to make a complete file server or other CIFS compatible device.
3.3 Source Code Distribution. Company also has a worldwide, royalty-free, non-exclusive, personal, non-transferable, non-sublicensable, license to distribute or otherwise disclose source code copies of such Company Implementation licensed in Section 3.2 only if Company (i) prominently displays the following notice in all copies of such source code, and (ii) distributes or discloses the source code only under a license agreement that includes the following notice as a term of such license agreement and does not include any other terms that are inconsistent with, or would prohibit, the following notice:
Note “This source code may incorporate intellectual property owned by Microsoft Corporation. Our provision of this source code does not include any licenses or any other rights to you under any Microsoft intellectual property. If you would like a license from Microsoft (e.g. rebrand, redistribute), you need to contact Microsoft directly.”
3.4 Limited Scope. The above license does not include the right (express, implied or otherwise) to make, use, import, offer to sell, sell or otherwise distribute or dispose of any technology that is not explicitly described in the Technical Reference, including without limitation (a) any Microsoft CIFS implementation, (b) any Microsoft technology that embodies a Microsoft CIFS implementation, (c) any enabling technologies that may be necessary to make or use any product or portion thereof that complies with the Technical Reference, but are not themselves expressly set forth in the Technical Reference, and (d) any implementation of other specifications or technologies developed by Microsoft or others that are merely referred to in the body of the Technical Reference.
3.5 Use of Technical Reference. Any Company Implementation shall implement the CIFS protocol in its entirety as specified in the Technical Reference. By way of clarification of the foregoing, Company shall not be required to implement any portion of the Technical Reference that is identified in the Technical Reference as "optional". However, if Company elects to implement a portion of the Technical Reference that is identified as optional, then Company must also implement that optional portion of the Technical Reference in its entirety. Additionally, Company Implementation shall not impair the operation of any Microsoft implementation of CIFS in any Microsoft product.
3.6 Reciprocal Patent License. To the extent Company owns, controls or can sublicense any Necessary Claims, Microsoft is hereby granted a worldwide, royalty-free, non-exclusive, personal, non-transferable, non-sublicensable license under its Necessary Claims to make, use, import, offer to sell, sell and distribute, directly or indirectly, to End Users, fully compliant implementations of the Technical Reference solely for the purpose of complying with the Technical Reference.
3.7 Defensive Suspension. In the event Company's distributors or licensees of Company Implementation ("Authorized Distributor") initiates against Microsoft any legal or administrative claim of patent infringement relating to the Technical Reference or any Microsoft implementation thereof, Company's license rights in Section 3.2 only with respect to such Authorized Distributor shall immediately terminate.
3.8 Reservation of Rights. All rights not expressly granted above are reserved by Microsoft or Company (as the case may be). No additional rights are granted by implication or estoppel or otherwise.
4. Disclaimers of Warranty
THE TECHNICAL REFERENCE AND ALL INTELLECTUAL PROPERTY DELIVERED AND/OR LICENSED BY EITHER PARTY TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT RELATED TO SUCH TECHNICAL REFERENCE AND INTELLECTUAL PROPERTY.
5. Limitation of Liability and Actions
MICROSOFT SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
6. Term and Termination
6.1 Term. Unless this Agreement is terminated in accordance with the provisions of this Section, the term of this Agreement shall commence as of the Effective Date and shall continue for five years, and shall automatically renew for additional five year terms unless either party provides written notice of its intent not to renew this Agreement at least thirty (30) days prior to the expiration of the current term. The time between the Effective Date and the expiration or termination of this Agreement shall be defined as the "Term".
6.2 Termination for Material Breach. Either party may terminate this Agreement if the other party is in material breach of any term or condition of this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice thereof.
6.3 Survival. Sections 1, 3.8, 4, 5, 6.3, 6.4, 6.5, 7.5, 7.6 and 7.7 shall survive any termination or expiration of this Agreement.
6.4 Right to Distribute. In the event this Agreement expires or is terminated pursuant to Section 6.1 or Company terminates the Agreement pursuant to Section 6.2, Company may continue to distribute, in accordance with Sections 3.2 and 3.3, Company Implementations that were created during the Term and that were commercially released in Company Products during the Term, provided that Company complies with the requirements of Sections 3.4-3.7, but Company may not develop or distribute any new Company Implementations or new products incorporating Company Implementations. In the event Microsoft terminates this Agreement pursuant to Section 6.2, all of Company's licenses under this Agreement shall terminate upon the effective date of termination and Company shall promptly return to Microsoft all copies of the Technical Reference in its possession.
6.5 End User Licenses. Licenses granted prior to the termination or expiration of this Agreement by Company to End Users for Company Implementations in accordance with the terms of this Agreement shall survive any termination or expiration of this Agreement.
7. Miscellaneous
7.1 No Partnership, Joint Venture or Franchise. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise as defined in the Washington Franchise Investment Protection Act, RCW 19.100, as amended, or 16 CFR Section 436.2(a).
7.2 Export Regulations. Company acknowledges that the Technical Reference is subject to U.S. export jurisdiction. Company agrees to comply with all applicable international and national laws that apply to the Technical Reference, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see https://www.microsoft.com/exporting/.
7.3 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 either to Company as stated on the signature block by Company or to Microsoft as follows:
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052-6399
Attention: Platforms Business Management
Phone: (425) 882-8080
Fax: (425) 706-7329
Copy to: Law & Corporate Affairs
Fax: (425) 706-7409
or to such other address as a party may designate pursuant to this notice provision.
7.4 Excusable Delays. Neither party hereto shall be in default by reason of any failure in the performance hereunder in accordance with any terms, if such failure is due to acts of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires floods, epidemics, quarantine restrictions, freight embargoes, civil commotions and the like.
7.5 Governing Law; Jurisdiction; Attorneys' Fees. This Agreement shall be construed and controlled by the laws of the State of Washington, and Company consents to exclusive 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 exclusive jurisdiction and venue in the Superior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum nonconveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any formal action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys' fees.
7.6 Assignment. 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 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.
7.7 Construction. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable (other than Sections 3.3, 3.6, and 3.7), that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. In the event that a court of competent jurisdiction finds that Sections 3.3, 3.6 or 3.7 are unenforceable, this entire Agreement shall be rendered null and void. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
7.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and merges all prior and contemporaneous 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.
MICROSOFT CORPORATION
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By (signature)
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Title
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Name (printed)
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Date
By (signature) Name (printed) Title Date By signing below you agree to the foregoing and represent that you have not modified this Agreement in any way.
COMPANY
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Company Name
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