MICROSOFT WINDOWS RALLY COMPONENT LICENSE AGREEMENT
This Microsoft Windows Rally Component License Agreement (the "Agreement") is by and between MICROSOFT CORPORATION, a corporation organized under the laws of Washington ("Microsoft"), and you or the organization on whose behalf you are entering into this Agreement (collectively and interchangeably, "You" or "Licensee"). If You want a license from Microsoft to access, view or implement one or more Licensed Specifications (as defined below), You must indicate your agreement to the terms of this Agreement by checking the "I Agree" box below. If you do not check the "I Agree" box, you have no right to access, view or implement the Licensed Specifications. This Agreement is effective on the date you check the "I Agree" box (the "Effective Date").
Microsoft has developed certain "Windows Rally" technologies that are intended to facilitate certain tasks performed by or in conjunction with network connected devices, including communications protocols. Licensee desires a license from Microsoft to access, view or implement the Licensed Specification(s), and to use the corresponding Technical Documentation (as defined below) for the purpose of such implementation(s).
1.1 "Affiliate" means, with respect to any legal entity, any other such entity directly or indirectly Controlling, Controlled by, or under common Control with such entity. "Control" means the power to direct the management of a legally recognizable entity.
1.2 "Game Console" means any computing system that has interactive gaming as its primary functionality and is not designed, marketed or capable of performing the functions of (or replacing) a server, personal computer, laptop, netbook, tablet, slate or smartbook.
1.3 "General Purpose Computing Device" means any server, personal computer, laptop, netbook, tablet, slate, smartbook or other device that: (i) contains processor(s), permanent and temporary memory storage device(s), and an operating system; (ii) is capable as shipped or enabled by the manufacturer or its designee of executing personal productivity applications (such as word processing, spreadsheet, database, personal information management, image editing, or financial management); (iii) is not a Game Console or Mobile Phone; and (iv) is shipped without a Microsoft operating system.
1.4 "Consumer Product" means a consumer ready device (other than a General Purpose Computing Device) that is capable of implementing the Licensed Specification and that is built by Licensee and branded with a trademark owned, controlled or licensed by Licensee. For purposes of this Agreement, a "consumer ready device" is a hardware device marketed primarily to consumers as a cohesive unit and not as a component of another single unit device.
1.5 "Licensed Specification" means only the LLTD and PNP-X Specifications as described in the Technical Documentation.
1.6 "Mobile Phone" means any mobile telephone or other mobile device that (i) has voice telecommunication functionality as a primary functionality, (ii) operates through a wireless network, (iii) has a display screen (whether a single display or multiple integrated displays) no larger than 5 inches across its diagonal, and (iv) does not include a keyboard designed for use with more than two fingers at a time.
1.7 "Necessary Claims" means those claims of Microsoft-owned or Microsoft-controlled patents that are necessary to implement the Required Portions in Consumer Products. Necessary Claims do not include any claims covering any underlying or enabling technology that may be necessary to make or use any product (or a portion thereof, including Consumer Products or combination therewith) that implements the Required Portions, or to any implementation of technical documentation, specifications or technologies that are merely referred to in the body of the Technical Documentation.
1.9 "Required Portions" means all portions of the Licensed Specification with the exception of any portions that are expressly identified by Microsoft as being "optional."
1.10 "Technical Documentation" means Microsoft's proprietary technical documentation for the Licensed Specification(s) as available at http://www.microsoft.com/whdc/connect/rally/default.mspx or successor websites.
2.1 Copyright License. Microsoft grants to Licensee a non-exclusive, royalty-free, non-sublicensable, nontransferable, personal, worldwide license under Microsoft copyrights in the Technical Documentation to copy the Technical Documentation for use solely in exercising its rights under Section 2.2.
2.2 Patent License. Subject to the terms and conditions of this Agreement, including Sections 2.4 and 2.5, and to Licensee's compliance with all notices in the Technical Documentation, Microsoft grants Licensee a personal, non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license under its Necessary Claims to make, have made (exclusively for Licensee for distribution under a Licensee Brand), use, sell, offer for sale and import implementations of the Licensed Specifications as incorporated only into Consumer Products and (a) solely in compliance with the Required Portions; and (b) if the Consumer Product into which the Licensed Specifications are implemented are distributed in source code form, solely together under a license agreement that includes the following term as a condition of such license agreement (and no other terms that are inconsistent with, or would prohibit, the following):
"This source code incorporates intellectual property owned by Microsoft Corporation and cannot be made, used, sold, offered for sale, imported or redistributed without a license from Microsoft Corporation. If you would like a license from Microsoft, you need to contact Microsoft directly (send mail to email@example.com)."
2.3 No Warranties. Licensee will make no representation or warranty to third parties on behalf of Microsoft.
2.4 Excluded Licenses. Notwithstanding anything else in this Agreement, Licensee is not licensed to and may not subject the Licensed Specifications, Technical Documentation or any Microsoft intellectual property right to the terms of the GNU General Public License (GPL), Lessor/Library GPL, Mozilla Public License or any license that requires, as a condition of use, modification or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology (a) be disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be re-distributable at no charge.
2.5 Reservation of Rights. All rights not expressly granted in this Agreement are reserved. No additional licenses or rights are granted by implication, exhaustion, estoppel or otherwise, including without limitation (i) any license or other right with respect to any portions of Consumer Products other than the implementation of Required Portions, and (ii) any license or other rights under any patent claims other than Necessary Claims. The grants of the licenses in Sections 2.1 and 2.2 are conditioned upon neither You nor any third parties receiving any licenses or rights (by implication, exhaustion, estoppel or otherwise) to implement the Licensed Specification except as incorporated into Your Consumer Products as licensed herein and You ensuring that all direct and indirect recipients of Your implementations agree to the foregoing condition.
2.6 License Termination. If You or Your Affiliate file, maintain, or voluntarily participate in a patent infringement lawsuit against a Microsoft implementation of any Licensed Specification, then this Agreement, and all rights granted to You under this Agreement, will terminate without any additional notice from Microsoft.
3. Confidentiality. The Licensed Specifications, Technical Documentation, and all intellectual property licensed to Licensee under this Agreement are the Confidential Information of Microsoft. Licensee will take reasonable security precautions, at least as great as precautions taken to protect Licensee's own confidential information but no less than reasonable care, to keep the Confidential Information confidential. Licensee will not disclose the confidential information except to Licensee's employees with a need-to-know the confidential information and only under a written agreement equally protective of Microsoft as this Section. Licensee may disclose the confidential information in accordance with a judicial or other governmental order as long as Licensee gives Microsoft enough notice to allow Microsoft to reasonably seek a protective order or equivalent. Licensee will notify Microsoft immediately upon discovery of any unauthorized use or disclosure of confidential information, and will cooperate with Microsoft to help regain possession of the confidential information and prevent its further unauthorized use or disclosure. Monetary damages may not be a sufficient remedy for unauthorized disclosure of confidential information, and Microsoft will be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
4 Term and Termination
4.1 Term. This Agreement is effective as of the Effective Date, unless and until terminated.
4.2 Termination. Licensee may terminate this Agreement at any time upon written notice to Microsoft. Microsoft may terminate this Agreement if Licensee materially breaches this Agreement and fails to cure the breach within sixty (60) days after Licensee receives notice of the breach from Microsoft. This Agreement and all rights granted to You will automatically terminate if the conditions of Section 2.5 are not satisfied.
4.3 Survival. Sections 1, 2.3, 2.4, 2.5, 4.3, 5.2, 6 and 7 will survive any termination of this Agreement. Subject to Section 2.5, after termination, end users will continue to have the right to use implementations of Required Portions in Consumer Products that were distributed under the license in Section 2.2 prior to termination.
5. Representations and Disclaimers of Warranty
5.1Licensee represents and warrants that the person signing this Agreement on Licensee's behalf has all necessary power and authority to do so, and that this Agreement is a binding obligation on Licensee.
5.2 DISCLAIMERS. THE TECHNICAL DOCUMENTATION, LICENSED SPECIFICATION(S) AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE AND/OR LICENSED UNDER THIS AGREEMENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MICROSOFT DISCLAIMS ALL WARRANTIES, DUTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO SUCH MATERIALS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
6. Limitation of Liability. MICROSOFT WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, WHETHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.1 No Partnership, Joint Venture or Franchise. This Agreement does not create a partnership, joint venture or agency relationship between the parties.
7.2 No Technical Support. This Agreement does not include technical support by Microsoft. Licensee is solely responsible for all such support and will advise channel entities and end users accordingly.
7.3 Export Regulations. The Technical Documentation and Licensed Specifications may be subject to U.S. export jurisdiction and other applicable national or international laws. Licensee agrees to comply with all such laws. See http://www.microsoft.com/exporting/.
7.4 Notices. All notices in connection with this Agreement will 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.
7.5 Governing Law; Jurisdiction; Attorneys' Fees. This Agreement is controlled by the laws of the State of New York as such laws apply to contracts entered into by New York residents to be performed entirely within New York. Licensee consents to exclusive jurisdiction and venue in the United States District Court for the Southern or Eastern Districts of New York. Licensee waives all defenses of lack of personal jurisdiction and forum non conveniens.
7.6 Assignment. Licensee may not transfer or assign this Agreement, or any rights or obligations hereunder, whether by operation of contract, law, change of Control or otherwise. Any attempted assignment by Licensee in violation of this Section is void.
7.7 Construction. If any court finds any portion of this agreement to be unenforceable (other than Section 2.2(b) or Section 2.5), such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the Agreement will continue in full force and effect. In the event that a court finds Section 2.2(b) or Section 2.5 unenforceable, this entire Agreement and any licenses granted hereunder will be rendered null and void. Failure to enforce any provision of this Agreement is not 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.