Microsoft has now posted the revised licenses for interoperability as a result of the EU antitrust agreement. Microsoft calls them the Microsoft Work Group Server Protocol Program License Agreements for Development and Product Distribution (WSPP Development Agreements). I don't know why they can't come up with better names. Probably for the same reason the Zune is brown.
You might want to read them carefully and see what you think. The EU Commission has not yet formally approved them, so it's not too late to notice anything egregious. The one most directly relevant to Samba is this one, the No Patents one [PDF]. Believe it or not, it's 53 pages long.
Here's the Patents Only license [PDF]. Here's the "All intellectual property" license [PDF]. Here's the IDL only license [PDF], meaning Interface Definition Language IDL files only.
The patent one is obviously incompatible with the GPL, as Tom Sanders points out on vnunet, having interviewed Mark Webbink, formerly at Red Hat and now on the board of the Software Freedom Law Center:
Linux vendors will be unable to license Microsoft's interoperability patents under the terms that were mandated by the European Commission, open source legal experts argue.
It is claimed that the the terms are incompatible with the General Public Licence (GPL), the licence that governs the Linux operating system.
"The agreement is going to run foul of the GPL," Mark Webbink, a director with the Software Freedom Law Center told vnunet.com. The group offers legal support to open source developers and users.
Red Hat's general counsel Michael Cunningham agrees that it looks that way. "Webbink also suggested that the Open Innovation Network (OIN) could build a patent portfolio to cover Microsoft interoperability," the article adds.
[Update: I think the worst part of it, though, is that it purports to be a worldwide solution. The EU has just agreed with Microsoft that software patents can be charged for, despite software patents being not allowed in many places in the world, including Europe so far. And the other serious issue I see is that the EU got a promise from Microsoft not to sue individual developers, only commercial vendors and end users. But in GPL works, there is no such distinction. End users and developers are one and the same, and contributions from noncommercial developers go right into commercial products. So any way you look at it, there is fear now smack dab in the middle of the new development process. FOSS is something new, and no solution that requires it to be like Microsoft will work, because it destroys what makes FOSS better. I'm sure Microsoft won't mind; but those who wish to have choice in the marketplace need to realize that something new has arrived, and to preserve it requires thinking in new ways. That means not allowing Microsoft to get you to chip away or destroy the GPL. That is what makes FOSS survive in the wild, and if you go along with Microsoft, only *other* open source licenses will survive. The problem with that is: the GPL is the single most popular license in the FOSS community. Linux uses that license. So does Samba, which the EU purports to be trying to help. So any solution that does not allow the GPL to function as intended is destructive to FOSS as a whole. It's why Microsoft fights it, after all, I've no doubt.]
Microsoft couldn't care less about GPL interoperability, obviously. It adds this note to the page with the new licenses:
Note: The WSPP Evaluation Agreements have been revised as of October 23, 2007. All of the agreements currently offered under the WSPP are subject to further review and comment by the European Commission. Under the development and distribution license terms, the technical documentation or intellectual property provided under the type of license chosen by the licensee can be used in worldwide development and distribution of work group server operating system products to accomplish the licensee's choice of work group server services. The WSPP communications protocols provide the rules for information exchange to accomplish specific predefined tasks and scenarios across a network connection. In some cases, specific protocols can be applied to more than one task or scenario.
Under the development and distribution license terms, the technical documentation or intellectual property provided under the type of license chosen by the licensee can be used in worldwide development and distribution of work group server operating system products to accomplish the licensee's choice of work group server services. The WSPP communications protocols provide the rules for information exchange to accomplish specific predefined tasks and scenarios across a network connection. In some cases, specific protocols can be applied to more than one task or scenario.
Protocols available under this program have been grouped according to the server tasks and scenarios for which they are used. Licensees can request that Microsoft grant them different usage rights from those that are reflected in standard WSPP license agreements for Microsoft protocol technology. Microsoft encourages developers interested in licensing Microsoft protocol technology for purposes other than those described in the standard WSPP license agreement to discuss their technical requirements with the Microsoft Protocol Licensing team to determine a suitable solution.
- Contact the Microsoft Protocol Program team [infodoc at microsoft.com]
To a large degree, the applicable royalty rates are determined by the server tasks or scenarios that licensees choose for their products that implement the communications protocols. Microsoft is committed to working constructively and in a spirit of good faith to craft appropriate royalties and customized licenses that may depart from programmatic offerings to address the needs of a particular licensee.
All licenses available under the program require completion of WSPP entry requirements and, in most cases, payment of one-time flat fee or prepaid royalties. Because of the range of different possible uses of the protocols that WSPP must accommodate in a reasonable and nondiscriminatory manner, the specific royalty amount may vary.
They have some background information there too, but the above is what you need to look for traps. Pardon my cynicism.
I clicked on the "entry requirements" and it seems that a patent license isn't just for the patent fee they announced:
C-2. For each separate WSPP Development Agreement, a licensee fee (for technical documentation) of €10,000 and a prepaid royalty payment (for patent licenses) of €5,000 is required. These amounts are nonrefundable unless your participation in the Microsoft Work Group Server Protocol Program is terminated because you do not complete other Program Entry Requirements.
Obviously that will never come up for any GPL code, because it's not compatible with patent licenses, which this is. This is not an offer of a patent peace for customers or any other such fancy footwork workaround. So not even Linspire can say yes to this. But for those who do, it's not €5,000 for a patent license and there you are. It's actually a royalty payment, not a license fee. Combining it with the €10,000 for the interoperability info, you get €15,000 for each WSPP agreement.
Now I need to go look and see how many would one need? This could get a bit pricey. And I note something in the Definitions section of the Patents Only license. They define Definitions like this:
1.5 "Distribute" or "Distribution" means selling, offering to sell, licensing, distributing, providing online access to, importing or otherwise making availaable in any manner to a third party, or to Licensee's own employees for internal use.
You'll love the definition of end user as well:
1.6 "End User" means a third party customer to which a a copy of or access to a product or service is Distributed, or otherwise provided for that customer's use, or creation of derivative workes, and not for further sublicense or further Distribution.
Lordy, there is always a "The GPL Need Not Apply" clause in everything Microsoft does. In this case, it's mutual and no GPL folks will be applying for that license. Maybe it's a good thing that no cash strapped vendors can be tempted. But it does mean, whether the EU Commission realizes it yet or not that Microsoft's number one competitor, Linux, is completely unable to be interoperable with Microsoft's patented code. I'm curious as to how that is helpful to the public who wish to have a choice. Neelie Kroes mentioned that there are only 31 patents that the EU Commission sees that might be at issue; what she may not have thought about is the effect of this precedent. If the end result is that Linux, which is released under the GPL, is unable to interoperate with Microsoft, then it's all been for nothing. All Microsoft needs to do then is patent every bit of functionality it can. Wait. It already is. And in the US, they can. So at some point, regulators need to think about this wall in the roadway that Linux can't pass. If marketplace choice is the goal, that wall has to come down. Perhaps the EU Commission thinks that the patents in this server case are easily worked around; if so, perhaps then they might consider making a statement regarding this being an agreement that is not to be taken as a precdent for any and all future interoperability situations.
To make it easier for us to analyze as a group, here are the first 16 pages of the text of the No Patents license:
FOR DEVELOPMENT AND PRODUCT DISTRIBUTION
This Microsoft Work Group Server Protocol Program License Agreement (No Patents) for
Development and Product Distribution (the "Agreement") is entered into between Microsoft
Corporation, a Washington corporation, with offices at One Microsoft Way, Redmond, Washington 98052-
6399 U.S.A. ("Microsoft"), and the person(s) or company(ies) identified as Licensees below, all of whom
are jointly and severally liable under this Agreement ("Licensee"), effective as of the date it has been
signed on behalf of all parties (the "Effective Date").
Licensee Full Legal Name: (parent)
Type of Legal Entity (corporation, company, partnership, sole proprietorship or other):
City, State (or equivalent), Country and Postal Code:
Licensee Contact Name:
[Licensee may execute the agreement on behalf of its wholly-owned subsidiaries]
[add the following for each licensee affiliate also licensed under this agreement]
Licensee Full Legal Name: (subsidiary)
Type of Legal Entity (corporation, partnership, sole proprietorship or other):
Licensee Legal Advisor Contact Information, if any:
Legal Advisor Name:
Legal Advisor Contact Phone Number:
Legal Advisor Contact Fax Number:
Licensee Support Phone Number:
Licensee Support Website:
Table of Exhibits
Exhibit A Licensed Protocols
Exhibit B Program Entry Requirements (applicable as of the Effective Date)
Appendix 1 WSPP Pricing Principles, Scenarios Royalty Tables, and Available Protocols
Appendix 2 Protocol Technical Documentation Specifications
Appendix 3 Third Party IP Claims (as of the Effective Date)
1. Definitions. Capitalized terms used in this Agreement are defined in this Section 1 or elsewhere
in this Agreement.
1.1 "Commission" means the Commission of the European Communities.
1.2 "Confidential Information" has the meaning set forth in Section 5.1.
1.3 "Decision" means the Commission of the European Communities Decision dated March 24, 2004
relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792-Microsoft-Decision).
1.4 "Distribute" or "Distribution" means licensing (including the right to modify and redistribute
source code versions of Licensed Server Implementations), distributing, providing online access to,
importing or otherwise making available in any manner to a third party.
1.5 "Licensed Protocols" means the WSPP Protocols listed in Exhibit A.
WSPP Dev Agmt No Patents
Rev. 23 October 2007
WSPP Protocols or WSPP Documentation that Microsoft owns or has the right to sublicense without a
fee: (a) know-how, industrial secrets, trade secrets and confidential information embodied in the WSPP
Protocols or disclosed by the WSPP Documentation; and (b) copyrights in the WSPP Documentation,
and, to the extent necessary for Licensee to exercise its rights under the scope of the license granted in
Section 2.1 of this Agreement, in the WSPP Protocols. For purposes of clarification, Microsoft Licensed
Intellectual Property does not include any rights under Microsoft patents or patent applications. Microsoft
acknowledges that by signing this Agreement, Licensee is not waiving its right to contest the validity of
any of Microsoft's know-how, industrial secrets, trade secrets and confidential information embodied in
the WSPP Protocols and disclosed by the WSPP Documentation, or copyrights.
1.7 "Program Entry Requirements" means the WSPP program entry requirements posted on the
WSPP Website from time to time.
1.8 "Protocol" means a set of rules of interconnection and interaction between various instances of
Windows Server Operating Systems and Windows Client Operating Systems running on different
computers in a Windows Work Group Network.
1.9 "Service Pack" means updates that Microsoft makes commercially available as a "service pack"
to a Windows Client Operating System or a Windows Server Operating System, under the applicable end
user license agreement for such product.
1.10 "Trustee" means a trustee appointed by the Commission pursuant to the Decision and the
Commission Decision of 28.7.2005 (C (2005) 2988 final) .
1.11 "Update" means any critical fix or recommended modification to, or updated component for, a
Windows Client Operating System or a Windows Server Operating System, that Microsoft develops and
makes commercially available through its website for the product to which the update applies (e.g.,
Windows Update or successor site), under the applicable end user license agreement for such product.
1.12 "Windows Client Operating Systems" means the software marketed, distributed and licensed
by Microsoft as Windows 98, Windows 98 Second Edition, Windows Millennium Edition, Windows NT
Workstation 4.0, Windows 2000 Professional, Windows XP Professional, Windows XP Home, or Windows
Vista, including updates (which include, without limitation, security patches) and upgrades (both
described in Section 3.2(a)) thereto, or their successors (including updates and upgrades thereto) for use
on personal computers. "Windows Client Operating Systems" do not include Windows XP Embedded or
its successors, Windows CE or its successors, or any other operating system designed for use with non-
PC devices such as gaming consoles, television set-top boxes, mobile telephones and personal digital
1.13 "Windows Server Operating Systems" means the software marketed, distributed and licensed
by Microsoft as Windows NT Server 4.0, Windows 2000 Server Standard Edition, Windows Server 2003
Standard Edition, and Windows Server 2008, including updates (which include, without limitation, security
patches) and upgrades (both described in Section 3.2(a)) thereto, or their successors (including updates
and upgrades thereto).
1.14 "Windows Work Group Network" means any group of (i) personal computers connected to a
network and on each of which a Windows Client Operating System is installed and (ii) Windows Work
Group Servers, linked together via a computer network. "Windows Work Group Server" means a
computer connected to a network and on which a Windows Server Operating System is installed.
1.15 "WSPP" means the Microsoft Work Group Server Protocol Program licensing program made
available by Microsoft and described at the WSPP Website.
1.16 "WSPP Development Agreement" means a then current version of a Microsoft protocol license
agreement for development and product distribution entered into by Microsoft and a licensee under the
1.17 "WSPP Development Licensee" means another licensee under a WSPP Development
Agreement, who has satisfied applicable Program Entry Requirements.
WSPP Dev Agmt No Patents
Rev. 23 October 2007
and corrections per Sections 3.2 and 3.3(a), provided by Microsoft pursuant to Article 5 of the Decision
and under this Agreement (and absent a specific reference to WSPP IDL Documentation, includes WSPP
1.19 "WSPP IDL Documentation" means the Interface Definition Language (IDL) specifications for
the WSPP IDLs.
1.20 "WSPP IDLs" means the file & print and user & group administration IDLs associated with certain
WSPP Protocols. WSPP Protocols with which WSPP IDLs are associated as of the Effective Date are
identified in Table A-2 of Appendix 1.
1.21 "WSPP Protocols" means the file & print and user & group administration Protocols disclosed by
Microsoft pursuant to Article 5 of the Decision and that are available for license under the WSPP (and
absent a specific reference to WSPP IDLs, includes WSPP IDLs). The WSPP Protocols as of the
Effective Date are listed in Appendix 1, and include updates and corrections per Sections 3.2 and 3.3(a)
of this Agreement.
1.22 "WSPP Website" means the website located at
http://www.microsoft.com/mscorp/legal/eudecision or successor site.
2. License Grant; Licensed Server Implementations; License Clarifications; No Microsoft
Statements; No Other Rights; Discussion of Licensing Terms; Notification Regarding Other
2.1 License Grant.
(a) General. Effective upon Licensee's fulfillment of all Program Entry Requirements, Microsoft
hereby grants to Licensee a world-wide, non-exclusive, personal license under the Microsoft Licensed
Intellectual Property to develop, make, use, and Distribute Licensed Server Implementations (as defined
below), subject to all provisions of this Agreement.
(b) Subcontracting. Licensee may contract with a third party to develop, consistent with all of the
terms of this Agreement, Licensed Server Implementations on Licensee's behalf ("Subcontractor")
provided that any such contract must contain terms requiring any and all third party Subcontractors to
comply with obligations no less restrictive than the applicable terms of this Agreement, including but not
limited to Sections 2 and 5 of this Agreement. Further, nothing in this Agreement shall preclude any
such third party Subcontractor from performing similar development work for any other WSPP
Development Licensee, pursuant to their WSPP Development Agreement.
2.2 "Licensed Server Implementation(s)" means only those portion(s) of individual copies of
software developed by or for Licensee that implement the Licensed Protocols.
2.3 License Clarifications. The licenses granted to Licensee in this Agreement do not include any
right to modify or Distribute the WSPP Documentation (or to modify or Distribute WSPP IDL
Documentation), except that Licensee may annotate those copies of the WSPP Documentation made
available by Microsoft to Licensee under this Agreement, for the purpose of Licensee's development
activities under the license granted in Section 2.1(a)(i). Information (other than information included in
source code) contained in the WSPP Documentation may not be Distributed in any manner other than as
part of a Licensed Server Implementation.
2.4 No Microsoft Statements. This Agreement does not authorize Licensee to make any claim,
representation, warranty (whether express, implied or statutory), or other statement on behalf of
Microsoft, including any statement that:
(a) Creates or purports to create any support or other obligations on the part of Microsoft,
with respect to the Licensed Server Implementation or otherwise;
(b) Allows any recovery of damages by any third party directly from Microsoft under any
theory of liability for any matter related to the Licensed Server Implementation; or
WSPP Dev Agmt No Patents
Rev. 23 October 2007
providing the Licensed Server Implementation.
2.5 No Other Rights. Except as expressly provided in this Agreement, no other rights are granted
under this Agreement by implication or estoppel or otherwise.
2.6 Discussion of Licensing Terms; Notification and Opportunity Regarding Other Licenses.
Microsoft acknowledges that this Agreement must be reasonable and non-discriminatory under the terms
of the Decision. In the event that Licensee believes any term in this Agreement is unreasonable,
Licensee may advise Microsoft of the issue and the reasons why Licensee believes the term or terms are
unreasonable. Microsoft agrees to work with Licensee in good faith to appropriately resolve the issue in a
reasonable and timely manner, i.e. within 60 days after Microsoft received notice from Licensee. In the
event that Microsoft and Licensee are unable to achieve agreement on such terms after good faith efforts,
Microsoft is willing to submit the matter for review by the Trustee. If any other WSPP Development
Licensee enters into a WSPP Development Agreement for the same Licensed Protocols with the same
WSPP Documentation under the same Microsoft Licensed Intellectual Property as licensed by Licensee
under this Agreement (such WSPP Development Agreement, an "Other License"), and the License Fee
(as defined below) and/or other terms of that Other License are more advantageous to that other WSPP
Development Licensee than the terms of this Agreement, Microsoft will notify Licensee and Licensee will
have the opportunity to enter into the same agreement as that Other License. Licensee will also have the
opportunity to receive a refund (if applicable) of the License Fee already paid by Licensee under this
Agreement, that reflects the same License Fee adjustment as received by the licensee under that Other
3. Deliverables; Updates; Support; Comments and Suggestions
3.1 WSPP Documentation
(a) General. Microsoft will provide Licensee with access to WSPP Documentation for the
Licensed Protocols via a security-protected online site or other reasonable method determined by
Microsoft from time to time as described in this Section 3.1 and Section 3.2.
(b) Licensee's Selection of Protocol Documentation.
(i) Once Licensee has initially fulfilled generally applicable Program Entry Requirements,
Microsoft will provide Licensee with access to the WSPP Documentation for the Licensed Protocols
initially selected by Licensee and listed on Exhibit A. Upon fulfillment of all applicable Program Entry
Requirements, the WSPP Protocols chosen by Licensee will become "Licensed Protocols" under this
Agreement. Program Entry Requirements applicable to Licensee's initial choices of Licensed Protocols
as of the Effective Date are listed on Exhibit B, and once Licensee has fulfilled those Program Entry
Requirements, Licensee will not be required to re-fulfill them, even if they subsequently change. At
Licensee's request, Microsoft will also provide up to three printed, personalized volumes of such WSPP
Documentation to Licensee. In light of Licensee's access also to an online version of the WSPP
Documentation, updated volumes will be provided annually.
(ii) If applicable, within 10 days of receipt of a written request from Licensee, Microsoft will
also provide Licensee with access to WSPP Documentation for any other WSPP Protocols subsequently
selected by Licensee. Microsoft will send Licensee an updated Exhibit A, and any additional WSPP
Protocols listed on that updated exhibit will also become a "Licensed Protocol" under this Agreement.
3.2 WSPP Documentation Updates
(a) General. Microsoft will make updated WSPP Documentation for modified and new WSPP
Protocols (that are added to WSPP after Microsoft initially provides WSPP Documentation to Licensee
under Section 3.1) available for license by Licensee under this Agreement:
(i) if applicable, upon release of the First Beta for the relevant Service Pack to the relevant
product, or new version of that product, that includes the modified or new WSPP Protocol (documentation
provided in such instance, a "Preliminary Documentation Update"), or
WSPP Dev Agmt No Patents
Rev. 23 October 2007
(A) commercial release of the Service Pack to the relevant product (i.e., Windows Client
Operating System or Windows Server Operating System), or new version of that product, that includes
the modified or new WSPP Protocol, or
(B) the day on which the final version of any other Update is posted to the Microsoft
website for the product to which the update applies (e.g., Windows Update site or successor website).
"First Beta" means the first public beta testing version of the Service Pack or new version of the relevant
Windows operating system product made available by Microsoft via an MSDN (Microsoft Developers
Network) subscription offering or of which 150,000 or more copies are distributed.
Licensee will be given automatic access to the WSPP Documentation for any Licensed Protocol
modifications made available under this Section 3.2. Licensee will be given access to the WSPP
Documentation for any other WSPP Protocol modifications or any new WSPP Protocols pursuant to the
process described in Section 3.1(b)(ii).
(b) Preliminary Documentation Updates. When a Preliminary Documentation Update is made
available to Licensee, Microsoft will also make the WSPP Documentation for the Commercially Released
version of the relevant Service Pack or new product version (such documentation, a "Final
Documentation Update") available to Licensee within 15 days after the relevant date production is
authorized for the manufacture of copies of software for commercial availability. THE CORRECTION
ASSISTANCE AND WARRANTY PROVISIONS OF SECTIONS 3.3(a) AND 6.3 DO NOT APPLY TO
PRELIMINARY DOCUMENTATION UPDATES, BUT DO APPLY TO FINAL DOCUMENTATION
UPDATES. Once Final Documentation Update(s) are made available, all Licensee rights to use relevant
Preliminary Documentation Update(s) automatically terminate. SINCE THE FIRST BETA CODE,
FEATURES AND/OR FUNCTIONALITY MAY BE SIGNIFICANTLY DIFFERENT FROM THE CODE,
FEATURES AND/OR FUNCTIONALITY OF THE COMMERCIALLY RELEASED VERSION, LICENSEE
IS ADVISED THAT THERE ARE RISKS IN ANY RELIANCE ON PRELIMINARY DOCUMENTATION
UPDATES, AND TO THE EXTENT THAT LICENSEE INCURS ADDITIONAL DEVELOPMENT OR ANY
OTHER COSTS AS A RESULT OF SUCH RELIANCE, IT DOES SO AT ITS OWN RISK.
(c) Availability. Once a protocol becomes a WSPP Protocol under the WSPP, Microsoft will
continue to make WSPP Documentation for that protocol available during the Term. Subject to the
foregoing, nothing in this Agreement requires Microsoft to (i) deliver any WSPP Documentation for any
modified or new protocol other than as provided in this Section 3.2 or (ii) continue to implement any
WSPP Protocol in any Windows Client Operating System or Windows Server Operating System.
However, Microsoft will provide notice to Licensee in the relevant portion of the WSPP Documentation of
WSPP Protocols that remain available for license but which are no longer used by Microsoft in Windows
Client and Server Operating Systems, generally in accordance with the timeframe in Section 3.2(a)(i).
(a) Correction Assistance. Microsoft (either itself or through a third party) will (i) specifically
acknowledge (i.e., beyond an auto-generated email) any Licensee requests for correction assistance
regarding any inaccuracies or omissions in the WSPP Documentation within 24 hours of such request,
and (ii) correct within a reasonable time any confirmed inaccuracies or omissions that prevent the WSPP
Documentation from complying with the warranty in Section 6.3 ("Correction Assistance"). Correction
Assistance does not include development or delivery of any software (including any computer program or
code, any product related bug fixes, workarounds, patches, beta fixes or beta builds), or any resolution to
(b) Additional Technical Support. Licensee may, at its option, obtain managed technical support
regarding Microsoft's WSPP Documentation and Windows operating systems products, at levels up to
and including an on-site Technical Account Manager, by entering into a WSPP Licensed Protocol Support
Addendum (a form of which is posted on the WSPP Website). Microsoft technical support personnel will
have access to internal Microsoft technical resources such as its product engineering organization, and
Windows operating system products source code as needed. Such technical support may include (i)
information about WSPP Protocols or WSPP Documentation; (ii) information about Windows operating
systems products publicly or programmatically available to Microsoft's customers or ISVs (independent
software vendors), other than source code; and/or (iii) assistance with debugging and verifying actual
WSPP Dev Agmt No Patents
Rev. 23 October 2007
products. Such technical support will not include (A) Licensee access to source code of Windows
operating systems or other Microsoft products, other than by entering into a WSPP Source Code License
Addendum (a form of which is posted on the WSPP Website); (B) any writing by Microsoft support
personnel of source code for Licensed Server Implementations; or (C) any assistance regarding Licensee
implementations of any underlying server functionality (as contrasted with the WSPP Protocols). Any
information and assistance provided in connection with support described in this Section 3.3(b)
concerning the behavior, meaning or interdependencies of Microsoft's products or protocol
implementations is provided for reference only and Licensee does not obtain any additional license rights
under this Agreement as a result of any disclosure contemplated by this Section 3.3(b).
(c) Third Party IP Rights and Claims.
(i) Rights. Although Microsoft warranty and notice obligations regarding Third Party IP
Claims (as defined below) are provided in Section 3.3(c)(ii) and Section 6.4, it is also possible that third
parties may have intellectual property rights in the WSPP Protocols of which Microsoft is unaware or
under which it is not free to sublicense, and accordingly, Licensee acknowledges that it may be required
to obtain additional license rights from third parties in order to implement the WSPP Protocols under the
licenses granted in this Agreement.
(ii) Claims. If the Microsoft Law and Corporate Affairs Department receives in its possession
during the Term a Third Party IP Claim in which Microsoft is an IP Defendant, Microsoft will provide
Licensee with written notice identifying that Third Party IP Claim. Also, if Licensee receives in its
possession during the Term a Third Party IP Claim in which Licensee is an IP Defendant, Licensee may
provide Microsoft with written notice identifying that Third Party IP Claim. "Third Party IP Claim(s)"
means, with respect to the entity (either Microsoft or Licensee) who is named as a defendant or against
whom a claim is made (the "IP Defendant") (i) litigation in which the IP Defendant is named as a
defendant and served with process or (ii) a written threat of litigation against the IP Defendant that a third
party or its authorized agent sends to the IP Defendant, and the IP Defendant and the IP Defendant's
internal legal department (to the extent the IP Defendant has one) receives in its possession, which
alleges that a WSPP Protocol or the WSPP Documentation infringes that third party's own intellectual
property rights for which Licensee is licensed under Section 2.1(a), with specificity and in sufficient detail
for the IP Defendant to identify (A) the allegedly infringing WSPP Protocol or WSPP Documentation, (B)
the allegedly infringed intellectual property and (C) the legal and technical basis of the allegation.
(d) Other. Except for the Microsoft obligations expressly described in Sections 3.3(a), (b) and
(c), as between Microsoft and Licensee, Licensee is solely responsible for all support issues relating to
Licensed Server Implementations.
3.4 Comments and Suggestions. Microsoft invites Licensee's comments and suggestions on the
WSPP Documentation and other items or information provided by Microsoft under this Agreement
("Comments and Suggestions"). If Licensee voluntarily provides (in connection with correction
assistance or otherwise) any Comments and Suggestions relating to the WSPP Documentation or
matters contained therein, Microsoft may, in connection with Microsoft products and services, use,
disclose or otherwise commercialize in any manner, any of those Comments and Suggestions without
obligation or restriction based on intellectual property rights or otherwise except that the foregoing does
not permit the Comments or Suggestions to be licensed by Microsoft on a standalone basis.
4. License Fee and Payments.
4.1 License Fee. Licensee will pay Microsoft a one-time license fee of 10,000 Euros ("License Fee").
(a) Payment Terms and Instructions. Licensee will pay an invoice issued by Microsoft (or its
Payment Agent) for the Licensee Fee within 30 days of receipt of the invoice. Payment will be made to
the Payment Agent (i.e. payments will be made out to the Payment Agent), to the following account or
address (or alternate Payment Agent, account or address upon reasonable notice from Microsoft):
Payment Agent: Microsoft Corporation
WSPP Dev Agmt No Patents
Rev. 23 October 2007
[Bank information redacted]
(Please remit one week prior to invoice due date if paying by check. Licensee is responsible for mailing
& courier fees.)
(b) Manner of Payment. The License Fee is payable in Euros. All references in this Agreement
to "" refer to Euros. The License Fee is non-refundable except as provided in Section 9.2(c).
(c) Taxes. This Section 4.2(c) governs the treatment of all taxes arising as a result of or in
connection with this Agreement, notwithstanding any other provision of this Agreement.
(i) Licensee is responsible for the billing, collecting and remitting of sales, use, value added,
and other comparable taxes due with respect to the collection of any revenues by Licensee, or any
portion thereof. Microsoft is not liable for any taxes (including any penalties or interest thereon), that
Licensee is legally obligated to pay and that are incurred by Licensee in connection with this Agreement
or any Licensee revenues or related to the licensing or other Distribution of any Licensed Server
Implementation, and Licensee takes full responsibility for all such taxes. Licensee is not liable for any
income taxes that Microsoft is legally obligated to pay with respect to any amounts paid to Microsoft by
Licensee under this Agreement.
(ii) The License Fee excludes any taxes, duties, levies, fees, excises or tariffs imposed on
any of Licensee's activities in connection with this Agreement. Licensee will pay to Microsoft (pursuant to
Section 4.2(a)) any applicable taxes that are owed by Licensee solely as a result of entering into this
Agreement and which are permitted to be collected from Licensee by Microsoft under applicable law,
except to the extent Licensee provides to Microsoft a valid exemption certificate for such taxes. Licensee
agrees to indemnify, defend and hold Microsoft harmless from any taxes (including without limitation
sales or use taxes paid by Licensee to Microsoft) or claims, causes of action, costs (including without
limitation reasonable attorneys' fees) and any other liabilities of any nature whatsoever related to such
(iii) If, after a determination by a tax authority outside the U.S., any taxes are required to be
withheld on payments made by Licensee to Microsoft, Licensee may deduct such taxes from the amount
owed Microsoft and pay them to the appropriate taxing authority; provided however, that Licensee will
promptly secure and deliver to Microsoft (through its Payment Agent) an official receipt for any such taxes
withheld or other documents necessary to enable Microsoft to claim a U.S. Foreign Tax Credit. Licensee
will make certain that any taxes withheld are minimized to the extent possible under applicable law.
5.1 Definition of Confidential Information. Microsoft asserts that it has invested significant effort and
expense in developing the WSPP Protocols and WSPP Documentation (although Microsoft
acknowledges that by signing this Agreement, Licensee is not (i) necessarily agreeing with the foregoing
assertion or (ii) waiving its right to contest it). The WSPP Documentation, and all non-public information
disclosed to Licensee in connection with Correction Assistance per Section 3.3(a), are Microsoft's
"Confidential Information." The terms of this Agreement are not Confidential Information of either
WSPP Dev Agmt No Patents
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of Licensee. Each party disclosing its Confidential Information to the other party under this Agreement is
the "Disclosing Party", and the party receiving such Confidential Information is the "Receiving Party."
5.2 Use and Disclosure of Confidential Information.
(a) General. Each Receiving Party will: (a) subject to Section 5.4, retain in confidence the
Confidential Information of the Disclosing Party; (b) make no use of the Confidential Information of the
Disclosing Party except as permitted under this Agreement; and (c) protect Confidential Information of the
Disclosing Party by using reasonable measures sufficient to maintain the confidentiality of such
(b) Permitted Recipients. Except as otherwise expressly authorized in Section 5.6, the
Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, temporary
personnel or independent contractors or other persons authorized by Licensee only on a "need to know
basis" and under a suitable written non-disclosure agreement that does not permit disclosure or use
except as permitted under this Agreement.,
5.3 Specific Procedures. Without limiting the generality of its obligations as a Receiving Party under
Section 5.2: (a) Licensee will preserve, abide by and not circumvent or attempt to circumvent any
technological mechanism (such as digital rights management technology or password protection)
designed to restrict access to or limit copying of the WSPP Documentation and that is included in or
applied to the WSPP Documentation made available by Microsoft, and (b) Licensee will not place or save
the electronic file containing the WSPP Documentation on any computer system that is accessible via the
Internet, except via a secure encrypted "virtual private network" connection to Licensee's internal network
system that is limited to authenticated use by persons otherwise authorized to have access to
Confidential Information under Section 5.2.
5.4 Exclusions. Neither party's Confidential Information includes information which: (a) is in or
subsequently enters the public domain or is or subsequently becomes known to the Receiving Party from
a source other than the Disclosing Party, without imposition of a confidentiality obligation on the
Receiving Party, and that entry into the public domain or disclosure does not result from any violation of
laws or breach of an obligation of confidentiality owed directly or indirectly with respect to the information;
or (b) was independently developed by the Receiving Party without reference to any Confidential
Information of the Disclosing Party in any form.
5.5 Independent Development/Residuals. The terms of confidentiality under this Agreement shall not
be construed to limit either the Disclosing Party or the Receiving Party's right to independently develop or
acquire products without use of the other party's Confidential Information. Further, the Receiving Party
shall be free to use for any purpose the residuals resulting from access to or work with the Confidential
Information of the Disclosing Party, provided that the Receiving Party shall not disclose such Confidential
Information except as expressly permitted pursuant to the terms of this Agreement. The term "residuals"
means information in intangible form, which is retained in unaided memory by persons authorized by the
Receiving Party who have had access to the Disclosing Party's Confidential Information per the
provisions of Section 5.2 (such persons, "Authorized Persons"), including ideas, concepts, know-how or
techniques contained in such Confidential Information. An Authorized Person's memory will be
considered to be unaided if such Authorized Person has not intentionally memorized the Confidential
Information for the purpose of retaining and subsequently using or disclosing it. The Receiving Party
shall not have any obligation to limit or restrict the assignment of Authorized Persons or to pay royalties
for any work resulting from the use of residuals. However, this Section 5.5 shall not be deemed to grant
to the Receiving Party a license under the Disclosing Party's copyrights or patents.
5.6 Permitted Disclosures.
(a) To the extent that Microsoft Confidential Information is embodied in and disclosed by source
code (including comments to source code in line with standard industry practice) versions of Licensed
Server Implementations, Licensee may disclose such Confidential Information as part of a distribution of
such source code. The foregoing does not authorize Licensee to publish the WSPP Documentation in
any manner (including in connection with or as part of Licensed Server Implementation source code) or to
WSPP Dev Agmt No Patents
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Implementation source code or works derived from it.
(b) The Receiving Party may disclose Confidential Information in accordance with judicial or
other governmental order, provided the Receiving Party (i) gives the Disclosing Party reasonable notice
prior to such disclosure to allow the Disclosing Party a reasonable opportunity to seek a protective order
or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity affording
the Confidential Information the highest level of protection afforded under applicable law or regulation,
provided that (except with respect to governmental orders) in no event may such level of protection be
less than is reasonably necessary to maintain the confidentiality of such Confidential Information.
(c) Subject to Section 5.6(b), the Receiving Party may also disclose Confidential Information in
connection with the Microsoft Work Group Server Protocol Program or Microsoft's compliance with the
Decision, to the Commission or to the Trustee.
(d) Confidential Information disclosed under this Section 5.6 remains Confidential Information
under this Agreement.
5.7 Publicity. Nothing in this Agreement prohibits Licensee from disclosing the fact that it has entered
into this Agreement and that it has implemented WSPP Protocol(s) in Licensed Server Implementation(s),
as long as Licensee does not use any Microsoft logo in so doing. However, Microsoft will not, without
Licensee's approval, issue any press releases or similar communications during the Term regarding the
fact that Licensee has entered into this Agreement, unless such fact has already been made public by
someone other than Microsoft.
6. Warranties, Limitations of Liability, Exclusive Remedies and Sole Liability.
(a) Each party warrants that (i) the person executing this Agreement on behalf of such party
has all necessary power and authority to do so, and that upon such signature this Agreement is a legal,
valid and binding obligation enforceable against such party, and (ii) that it is entering into this Agreement
in good faith.
(b) Licensee further warrants that, as of the Effective Date and throughout the Term: Licensee
has not: (i) created or Distributed a computer virus with malicious intent; or (ii) engaged in repeated willful
violations, or knowing and material contribution or inducement to repeated willful violations by third
parties, of intellectual property rights or of laws or regulations prohibiting circumvention of technology
measures that control access to, or the ability to copy, software or other copyrighted digital content.
6.2 Copyright Infringement. Microsoft further warrants that the WSPP Protocols and the WSPP
Documentation do not infringe any copyright of any third party.
6.3 Documentation and Licensing Terms. Microsoft further represents and warrants and undertakes
(a) the WSPP Documentation is complete and accurate as required by Article 5 of the Decision
read in conjunction with Article 1 of the Decision;
(b) the WSPP Documentation conforms to the Protocol Technical Documentation Specifications
listed in Appendix 2;
(c) the WSPP Documentation is and will be kept updated on an ongoing basis and in a timely
manner as required by Article 5 of the Decision read in conjunction with Article 1 of the Decision;
(d) the WSPP Documentation provided by Microsoft under this Agreement will be provided in an
organized manner and in a format suitable for analysis and interpretation by software engineers
reasonably skilled in the art of server software protocols and familiar with (although not necessarily
specialized in) Windows Server Operating Systems developer technologies;
(e) in offering the terms and conditions under this Agreement to Licensee (including, without
limitation, the financial provisions, warranties and any restrictions imposed on Licensee hereunder in
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comply with the requirement under Article 5 of the Decision that it must allow undertakings to use the
Interoperability Information (as defined in Article 1 of the Decision) on terms which are reasonable and
non-discriminatory. If at any time Microsoft grants any Third Party license fees, terms and conditions that
may be deemed to be more advantageous, Microsoft will give prompt notice to Licensee and provide the
necessary information to determine compliance with this representation and warranty.
6.4 Third Party Claims. Microsoft further warrants that as of the Effective Date, to the best of its
knowledge, it does not have any Third Party IP Claims (defined in Section 3.3(c)(ii)) other than as may
be set forth in Appendix 3 to this Agreement.
6.5 LIMITATIONS OF LIABILITY. EXCEPT AS PROVIDED IN SECTIONS 6.1-6.4 AND WITH
REGARD TO THE IMPLIED WARRANTY OF TITLE AS TO ANY GOODS PROVIDED TO LICENSEE,
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY EXCLUDES ALL CONDITIONS,
WARRANTIES AND OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES OR BE
IMPLIED OR INCORPORATED INTO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN
RELATION TO (i) THE WSPP DOCUMENTATION, (ii) PRELIMINARY DOCUMENTATION UPDATES,
(iii) CORRECTION ASSISTANCE, (iv) COMMENTS AND SUGGESTIONS, AND (v) ALL INTELLECTUAL
PROPERTY IN ANY OF THE FOREGOING (INCLUDING, WITHOUT LIMITATION, THE MICROSOFT
LICENSED INTELLECTUAL PROPERTY) (COLLECTIVELY, THE "MATERIALS"), WHETHER BY
STATUTE, COMMON LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
CONDITIONS, WARRANTIES AND OTHER TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR
PURPOSE AND THE USE OF REASONABLE SKILL AND CARE. EXCEPT AS PROVIDED IN
SECTION 6.2 OR 6.4 AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
MICROSOFT MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND THAT (i) THE
MATERIALS DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR
(ii) ANY LICENSED SERVER IMPLEMENTATION WILL NOT INFRINGE ANY INTELLECTUAL
PROPERTY RIGHT OF ANY THIRD PARTY.
6.6 EXCLUSIVE REMEDIES AND SOLE LIABILITY. BOTH PARTIES AGREE THAT LICENSEE'S
SOLE AND EXCLUSIVE REMEDY AND MICROSOFT'S SOLE LIABILITY IN CONNECTION WITH ANY
CLAIM RELATED TO:
(a) A VIOLATION OR BREACH OF THE WARRANTY IN SECTION 6.2 IS A CLAIM FOR
INDEMNIFICATION FROM THIRD PARTY CLAIMS UNDER SECTION 7.1(a) (SUBJECT TO THE
TERMS AND LIMITATIONS SET FORTH IN SECTION 7), AND THAT LICENSEE IS NOT ENTITLED TO
BRING ANY CLAIM FOR DAMAGES AGAINST MICROSOFT BASED ON ANY ALLEGED OR ACTUAL
VIOLATION OR BREACH OF THE WARRANTY IN SECTION 6.2;
(b) SECTION 6.4 (INCLUDING WITHOUT LIMITATION ANY BREACH THEREOF) IS FOR
LICENSEE TO TERMINATE THIS AGREEMENT WITH RESPECT TO ALL WSPP PROTOCOLS THAT
ARE THE SUBJECT OF THE RELEVANT THIRD PARTY IP CLAIM AND, FOLLOWING SUCH
TERMINATION, TO PURSUE A CLAIM FOR DAMAGES AGAINST MICROSOFT BASED ON A
VIOLATION OR BREACH OF THE WARRANTY IN SECTION 6.4, PROVIDED THAT SUCH DAMAGES
WILL NOT IN ANY EVENT EXCEED (REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY
CLAIM FOR SUCH DAMAGES IS BASED) THE AMOUNT OF THE LICENSE FEE PAID BY LICENSEE
TO MICROSOFT HEREUNDER, AND TO THE EXTENT APPLICABLE, TO OBTAIN INDEMNIFICATION
AND DEFENSE BY MICROSOFT WITH RESPECT TO THIRD PARTY IP CLAIMS UNDER SECTION
7.1(b) SUBJECT TO THE TERMS AND LIMITATIONS SET FORTH IN SECTION 7; AND
NOTHING IN THIS SECTION 6.6 IS INTENDED TO LIMIT THE REMEDIES AVAILABLE TO
MICROSOFT WITH RESPECT TO MISREPRESENTATIONS BY LICENSEE OR OTHER BREACHES
OF SECTION 6.1. NOTHING IN THIS AGREEMENT SHALL EXCLUDE MICROSOFT'S LIABILITY FOR
DEATH OR PERSONAL INJURY ARISING FROM NEGLIGENCE.
7.1 General. Subject to Sections 7.2 and 7.3, Microsoft agrees at its expense and Licensee's
request to indemnify and hold harmless Licensee and Licensee's subsidiaries, directors, officers, and
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by) a court of competent jurisdiction or agreed to in a settlement pursuant to Section 7.3 below
("Indemnified Damages") as a result of:
(a) third party claims, demands or actions based on allegations which, if true, would constitute a
breach of Microsoft's warranty in Section 6.2, and/or
(b) third party claims, demands or actions based on allegations which, if true, would constitute a
breach of Microsoft's warranty in Section 6.4 ("7.1(b) Covered Claims"; along with the claims referenced
in Section 7.1(a), "Covered Claims").
7.2 7.1(b) Claims. Subject to Section 7.3, Microsoft also agrees at its expense to defend the
Indemnified Parties against 7.1(b) Covered Claims, and the costs of such defense are not capped;
provided, however, that such defense obligation, and Microsoft's obligation to indemnify and hold the
Indemnified Parties harmless under Section 7.1(b), excludes Licensee's reverse engineered products or
products created by Licensee prior to the Effective Date.
7.3 Condition and Procedures. Microsoft's obligation to indemnify, hold harmless and defend the
Indemnified Parties under Section 7.1 and 7.2 is conditioned on Licensee's providing Microsoft with
reasonably prompt notice in writing of any Covered Claim, and tendering control of the defense of such
Covered Claim to Microsoft. Microsoft will not settle any Covered Claim except with prior written
permission of Licensee, which permission Licensee will not unreasonably withhold. Notwithstanding
Licensee's tender of control of defense to Microsoft under this Section 7.3, Licensee may also participate
at its own expense in such defense, provided that control over defense strategy decisions remains with
Microsoft subject only to the express provisions of this Section 7.3 regarding settlement approvals.
7.4 Additional Claims. Microsoft agrees at its expense and Licensee's request to defend Licensee in
a lawsuit, and pay the amount of any adverse final judgment (or settlement to which Microsoft agrees in
advance in writing) from such lawsuit, for any third party claim(s) that a Licensed Protocol implemented
and Distributed in a Licensed Server Implementation in accordance with Section 2 and the other
provisions of this Agreement, infringes third party patent Necessary Claims that were not known to
Microsoft as of the Effective Date (such third party claims, "Additional Claim(s)"); provided that:
(a) Licensee promptly notifies Microsoft in writing of the Additional Claim, in sufficient detail to
identify (i) the allegedly infringing Licensed Protocol, (ii) the allegedly infringed patent Necessary Claims
and (iii) the legal and technical basis of the allegation,
(b) Microsoft controls the defense and/or settlement of the Additional Claim,
(c) Licensee provides Microsoft with reasonable assistance (at Microsoft's expense) in the
defense of the Additional Claim,
(d) Microsoft's obligations to defend and pay any Additional Claim shall be limited to Additional
Claims wherein the Licensed Protocol alone, without combination or modification, constitutes direct or
contributory infringement of such Additional Claim, and
(e) if the lawsuit identified above includes any claim, other than Additional Claim(s), that the
Licensed Server Implementation containing the allegedly infringing Licensed Protocol(s) infringes any
third party intellectual property rights ("Other Claims"), Licensee reimburses Microsoft for any and all
attorney's fees and costs incurred by Microsoft in defending against Other Claims, provided that Licensee
controls the defense and/or settlement of those Other Claims.
Notwithstanding each party's control of defense of Additional Claims and Other Claims under this
Section 7.4, the other party may also participate at its own expense in such defense, provided that
control over defense strategy decisions with respect to (i) Additional Claims remains with Microsoft and (ii)
Other Claims remains with Licensee. Microsoft will have no obligations under this Section 7.4 for any
Additional Claim based on (A) Licensee's manufacture, use or Distribution of software containing an
allegedly infringing Licensed Protocol more than 20 days after Microsoft has provided Licensee with at
least 20 days written notice that (1) Microsoft (at its option) will stop such activity or (2) Microsoft (at its
option) will modify the allegedly infringing Licensed Protocol and provide that modified Licensed Protocol
to Licensee for license under this Agreement in lieu of the allegedly infringing Licensed Protocol at or
prior to the end of such notice period, or (B) on Licensee's reverse engineered products or products
created by Licensee prior to the Effective Date. Microsoft's liability under this Section 7.4 will not exceed,
WSPP Dev Agmt No Patents
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attorneys incurred by Microsoft in defending Additional Claim(s).
8. LIMITATIONS OF REMEDIES & LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL LOSSES OR SPECIAL DAMAGES WHATSOEVER, OR FOR LOSS OF PROFITS,
ANTICIPATED SAVINGS, BUSINESS OPPORTUNITY OR GOODWILL OR LOSS OF DATA, ARISING
OUT OF OR IN ANY WAY CONNECTED TO THE USE OF OR INABILITY TO USE THE WSPP
DOCUMENTATION OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS
AGREEMENT, WHETHER ARISING OUT OF NEGLIGENCE OR OTHERWISE. THE FOREGOING
EXCLUSION APPLIES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE AND EVEN IF ANY AVAILABLE REMEDY FAILS OF ITS ESSENTIAL
PURPOSE, BUT DOES NOT APPLY TO (I) BREACH OF SECTION 5 (CONFIDENTIALITY), SECTION
6.1(B) (CERTAIN LICENSEE WARRANTIES), OR SECTION 6.3 ( DOCUMENTATION AND LICENSING
TERMS) ((II) INDEMNIFIED DAMAGES, OR (III) ANY INFRINGEMENT OR MISAPPROPRIATION OF
EITHER PARTY'S INTELLECTUAL PROPERTY RIGHTS. NOTHING IN THIS AGREEMENT
EXCLUDES MICROSOFT'S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM
9. Term & Termination.
(a) Initial Term. The initial term of this Agreement commences on the Effective Date and
remains in effect until the date that is five years from the Effective Date, unless and until this Agreement
is earlier terminated in accordance with Section 9.2 ("Initial Term").
(b) Term Extensions. Unless the Agreement has been terminated prior to expiration, Licensee
may extend the term of this Agreement for successive terms of five years ("Extensions") by giving written
notice to Microsoft during the period beginning 60 days prior and ending on the expiration date of the
Initial Term or then-current Extension. The Initial Term, together with any Extensions, constitutes the
"Term" of this Agreement. To account for the availability of new technology or other developments,
Microsoft reserves the right to make any Extension subject to Licensee's agreement to new or revised
terms, including royalty terms, provided any such terms are consistent with the Decision and the WSPP
Pricing Principles set forth in Appendix 1. Microsoft may terminate Licensee's right to obtain Extensions
by giving written notice to Licensee if Microsoft receives permission from the Commission of the
European Communities to do so. Following delivery of such notice, the Agreement will expire on the date
that is the later of (i) the last day of the Initial Term or then-current Extension (if applicable); or (ii) three
years following the date of such notice.
(a) By Licensee Without Cause. Licensee may terminate this Agreement at any time, in its sole
discretion and without cause, by providing written notice to Microsoft and complying with Section 9.3(a).
(b) By Microsoft for Cause. Microsoft may terminate this Agreement: (i) immediately upon
written notice at any time, if Licensee is in material breach of Section 5 of this Agreement; (ii) upon
written notice at any time if Licensee is in material breach of any warranty, term or condition of this
Agreement and fails to remedy that breach (if such breach is capable of being remedied) within 60 days
after written notice thereof; or (iii) upon written notice at any time if Licensee has received three or more
written termination notices under the preceding clause (ii) within the previous 12-month period based on
an actual material breach of a material warranty, term, or condition of this Agreement, even if those
previous material breaches have been cured. Any material breach has to be established by a court of
(c) Termination for Non-Satisfaction of Program Entry Requirements. If Licensee has not
satisfied all applicable Program Entry Requirements within 90 days after the Effective Date, Microsoft has
the right to immediately terminate this Agreement upon written notice to Licensee, and in the event of
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paid before such termination. Licensee's failure to satisfy any Program Entry Requirements is not, in and
of itself, a material breach of this Agreement.
(d) Termination as to Licensee Subsidiaries; Survival. Notwithstanding any other provision of
this Agreement: (i) this Agreement will terminate immediately (without notice or opportunity to cure) with
respect to any party identified as a Licensee subsidiary on the first page of this Agreement, at such time
as such subsidiary ceases to be a wholly-owned subsidiary of the party identified as the Licensee parent
on the first page of this Agreement, and (ii) upon such termination, such subsidiary will no longer be
entitled to exercise any rights under this Agreement, but all obligations and liabilities of such subsidiary
accruing before the termination date will survive such termination; provided that any subsidiary so
terminated may (after meeting applicable then-current Program Entry Requirements) enter into a new
agreement on its own behalf either: (i) on the then-current terms of the WSPP Development Agreement,
or (ii) for a period of 30 days after such termination, on the same terms as this Agreement (rather than the
then-current terms of the WSPP Development Agreement) and for a term concurrent with this Agreement.
9.3 Effect of Expiration or Termination; Survival.
(a) Termination - General. Upon any termination of this Agreement or (if applicable) Licensee's
rights under Section 9.3(b) or (c): (i) except as provided in Section 9.3(c) below, Licensee will
immediately (A) cease all reference to and use of the WSPP Documentation and activities (including but
not limited to all production and all Distribution of Licensed Server Implementations) with respect to the
WSPP Protocols and/or Microsoft Licensed Intellectual Property and (B) if Licensee has received any
copies of WSPP Documentation from Microsoft, return to Microsoft all such WSPP Documentation copies
(including any portion thereof) in Licensee's possession or under its control and if requested by Microsoft,
provide a declaration signed by a Licensee officer attesting that all such copies have been returned to
Microsoft, and (ii) the following will survive such termination: Sections 3.2(b) (Preliminary Documentation
Updates), solely as to the warranty and liability exclusions therein; 3.4 (Comments and Suggestions);
4 (License Fee and Payment), 5 (Confidentiality), 6-8 (Warranties, Limitations of Liability, Exclusive
Remedies and Sole Liability; Indemnification; Limitations of Remedies & Liability), and 10
(Miscellaneous), as well as Sections 9.1-9.2, 9.4 and this Section 9.3(a).
(b) Expiration of Agreement (Without Earlier Termination). If this Agreement has not been earlier
terminated, then upon expiration of the full Term of this Agreement: (i) subject to the express license
scope and other terms and conditions referenced in Sections 2 and 5, the rights granted Licensee under
Section 2.1(a) will survive, and Licensee may retain in its possession and continue to use the WSPP
Documentation made available to it by Microsoft during the Term solely to exercise such rights; and (ii)
the following will also survive such expiration: Sections 3.2(b) (Preliminary Documentation Updates),
solely as to the warranty and liability exclusions therein; 3.4 (Comments and Suggestions); 4 (License
Fee and Payment); 5 (Confidentiality); 6-8 (Warranties, Limitations of Liability, Exclusive Remedies and
Sole Liability; Indemnification; Limitations of Remedies & Liability); and 10 (Miscellaneous); and this
Section 9 (Termination).
(c) Support for Licensee Products Following Termination. Subject to the express license scope
and other terms and conditions referenced in Sections 2 and 5, upon any termination of this Agreement
other than under Section 9.2(a), Licensee may retain in its possession and continue to use the WSPP
Documentation made available to it by Microsoft during the Term solely for purposes of providing
technical support and maintenance services for versions of Licensed Server Implementations
Commercially Released prior to such termination ("Existing WSPP Implementations"), including
Distribution of bug fixes and patches for such Existing WSPP Implementations. The following provisions
of this Agreement will also survive as applicable to such technical support and maintenance activities:
Sections 3.2(b) (Preliminary Documentation Updates), solely as to the warranty and liability exclusions
therein; 3.4 (Comments and Suggestions); 4 (License Fee and Payment); 5 (Confidentiality); 6-8
(Warranties, Limitations of Liability, Exclusive Remedies and Sole Liability; Indemnification; Limitations of
Remedies & Liability); and 10 (Miscellaneous); and this Section 9 (Termination).
(d) Expiration or Termination of this Agreement do not affect the rights of recipients of source
code versions of Licensed Server Implementations to copy, distribute and modify source code versions of
Licensed Server Implementations.
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are not exclusive of any rights or remedies available at law or in equity, subject only to the express
waivers and limitations of liability set forth in this Agreement.
10.1 No Partnership, Joint Venture or Franchise. Neither this Agreement, nor any terms or conditions
contained herein, create a partnership, joint venture or agency relationship or grant a franchise as defined
in the Washington Franchise Investment Protection Act, RCW 10.100, as amended, 16 CFR
Section 436.2(a), or any other similar laws in other jurisdictions.
10.2 Export Laws and Regulations. Products and technical information of Microsoft are subject to U.S.
export jurisdiction and other applicable national or international laws and regulations, and the licenses
and deliveries of technical information and data contemplated herein may be prohibited by such laws and
regulations. Licensee agrees to comply with all applicable international and national laws. For
additional information, see http://www.microsoft.com/exporting/.
10.3 Actions on Behalf of the Parties. Microsoft and Licensee are each liable for, and will be deemed
for all purposes of this Agreement to have done or failed to do, any act or omission of their respective
officers, employees, temporary personnel, or independent contractors related to acts or omissions in
connection with this Agreement.
10.4 Notices. All notices and requests in connection with this Agreement are deemed given on 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 to Licensee using the
contact information indicated on the first page of this Agreement, to Microsoft using the contact
information below, or to either party at such other address as the party to receive the notice or request so
designates per this notice provision:
[address, phone fax redacted]
10.5 Licensee Contests and Complaints.
(a) Microsoft acknowledges that by signing this Agreement, Licensee is not waiving its right to
contest the validity of any of Microsoft's know-how, industrial secrets, trade secrets and confidential
information embodied in the WSPP Protocols and disclosed by the WSPP Documentation, or copyrights,
and without prejudice to the provisions of Section 9.2, Microsoft will not withhold WSPP Documentation
from Licensee or terminate this Agreement on the basis of such a contest by Licensee.
(b) Nothing in this Agreement will prevent Licensee from complaining to the Commission of the
European Communities that terms and conditions of this Agreement do not comply with the Decision.
Without prejudice to the provisions of Section 9.2, Microsoft will not withhold WSPP Documentation from
Licensee or terminate this Agreement on the basis of such a complaint by Licensee.
(c) This Agreement neither takes away from nor adds (except as expressly stated in this
Agreement) to any rights a licensee might have under Articles 81 or 82 EC or equivalent provisions of
national competition laws.
10.6 Injunctive and Equitable Relief, Liquidated Damages.
(a) Microsoft acknowledges and agrees that (i) monetary damages will not be a sufficient remedy
for Microsoft's breach of its obligations under Section 5, and (ii) such unauthorized disclosure, use or
exercise of rights will cause Licensee immediate, severe and irreparable injury. Accordingly,
notwithstanding the provisions of Section 10.7, Microsoft acknowledges that Licensee will be entitled in
such circumstances, without waiving or prejudicing any other rights or remedies, to such injunctive or
equitable relief as a court of competent jurisdiction may grant.
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Decision or the representation in Section 6.3, (i) monetary damages will not be a sufficient remedy; (ii) in
any event, the injured party will be entitled to such injunctive or equitable relief as a court of competent
jurisdiction may grant, without waiving or prejudicing any other rights or remedies. In the event of any
breach by Microsoft of any of the provisions of Sections 6.3(a), (b), (c) or (d) of this Agreement, where as
a result of such breach (and as long as it continues) Licensee is unable effectively to use the WSPP
Documentation as contemplated in Article 5 of the Decision for a software development project the
planning or actual execution of which is duly substantiated, Microsoft shall pay Licensee liquidated
damages in the amount of [to be determined by Parties based on an estimation of actual damages, but at
least 135.000] per day for each day in which such breach continues. The parties acknowledge that the
foregoing amount reflects their assessment of the damages which Licensee is likely to incur as a result of
such breach including by reason of expected delays in developing products and launching products on
(c) Licensee acknowledges and agrees that (i) monetary damages will not be a sufficient remedy
for Licensee's breach of its obligations under Section 5, or for use of the WSPP Documentation or
exercise of rights in the Microsoft Licensed Intellectual Property other than as authorized by Sections 2
and 5 of this Agreement, and (ii) such unauthorized disclosure, use or exercise of rights will cause
Microsoft immediate, severe and irreparable injury. Accordingly, notwithstanding the provisions of
Section 10.7, Licensee acknowledges that Microsoft will be entitled in such circumstances, without
waiving or prejudicing any other rights or remedies, to such injunctive or equitable relief as a court of
competent jurisdiction may grant.
10.7 Governing Law; Jurisdiction; Attorneys' Fees.
This Agreement shall be governed by and
construed in accordance with English law. Each party hereby submits to the exclusive jurisdiction of the
Chancery Division of the High Court of England and Wales in London. 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
is entitled to recover its costs, including reasonable attorneys' fees, costs and other expenses. The
Parties acknowledge and agree that any formal action or suit to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement constitutes an issue relating to the application
of Article 82 of the Treaty within the meaning of Article 15 of Regulation 1/2003.
(a) The party identified as the Licensee parent on the first page of this Agreement may assign
this Agreement on satisfaction of the following conditions precedent: (i) such Licensee and the proposed
assignee have executed and delivered an Assignment and Assumption Agreement in a form acceptable
to Microsoft (a sample of which is available on the WSPP Website), which agreement provides for the
assignment of all of Licensee's rights and obligations under this Agreement to the proposed assignee;
and (ii) the proposed assignee has satisfied all applicable Program Entry Requirements. Upon fulfillment
of (i) and (ii) Microsoft will promptly sign the Assignment and Assumption Agreement and return an
executed copy to Licensee and the proposed assignee.
(b) Microsoft may terminate this Agreement immediately upon written notice if the party
identified as the Licensee parent on the first page of this Agreement assigns or otherwise transfers,
whether by operation of contract, law or otherwise, fifty percent (50%) or more of such Licensee's assets,
excluding this Agreement, in a single transaction or series of transactions, unless either (i) the entity to
which such Licensee proposes to make such assignment or transfer first enters into a Guarantee
Agreement in the form posted on the WSPP Website from time to time, or (ii) such Licensee and
Microsoft expressly agree otherwise in writing.
(c) Notwithstanding any other provision of this Agreement, any party identified as a Licensee
subsidiary on the first page of this Agreement does not have the right to, and will not, assign this
Agreement (or its rights or obligations hereunder) in whole or in part.
(d) Any attempted assignment in violation of Section 10.8(a), (b) or (c) is null and void and has
no force or effect.
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the Decision and statement of reasons for it. If for any reason a court of competent jurisdiction finds any
provision of this Agreement, or portion thereof, other than Sections 2.1, 2.2, 2.3, -2.5 (License Grant;
Licensed Server Implementations; License Clarifications; No Other Rights), 5 (Confidentiality),
6.5 (Limitations of Liability), 6.6 (Exclusive Remedies and Sole Liability), 8 (Limitations of Remedies &
Liability), or 10.8 (Assignment), to be unenforceable, the rest will remain in effect. If any of the foregoing
provisions or any portion thereof are held by a court of competent jurisdiction to be unenforceable, this
Agreement terminates immediately.
10.10 Third Parties Rights. A person who is not a party to this Agreement is not a beneficiary of the
rights granted to Licensee under this Agreement, and has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this Agreement in contract.
10.11 Entire Agreement. This Agreement does not constitute an offer by Microsoft and is not effective
unless and until this Agreement is signed by duly authorized representatives of both parties. This
Agreement may be executed in counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument. This Agreement (including its Exhibits and Appendices)
constitutes the entire agreement between the parties with respect to its subject matter and supersedes all
prior and contemporaneous communications, agreements, arrangements and understandings between
the parties in connection with this Agreement and on such subject matter. Except as provided in
Section 3.1(b)(ii) (regarding updates to Exhibit A), no modifications of this Agreement are effective
unless contained in a subsequent written agreement that expressly references this Agreement and its
intent to modify its terms, and is signed by duly authorized representatives of Licensee and Microsoft.
IN WITNESS WHEREOF, the parties, through their duly authorized representatives, have entered into
this Agreement, to be effective on the Effective Date.
WSPP Dev Agmt No Patents
Rev. 23 October 2007