Microsoft Covenant to Customer Agreements
Ansys Covenant to Customers
Microsoft Corporation ("Microsoft"), on behalf of itself and its Subsidiaries, hereby covenants not to sue a Customer of ANSYS, Inc. ("ANSYS") for infringement under Microsoft's Covered Patents on account of such Customer's use of Listed Programs solely in combination with ANSYS Simulation Tools as distributed by ANSYS during the Covenant Term and as licensed to such Customer under an ANSYS Site License entered into during the Covenant Term. For the avoidance of doubt, the foregoing covenant does not apply to (i) use of the Listed Programs for any purpose other than enabling the use of the ANSYS Simulation Tools, (ii) any enabling technologies (underlying operating system, necessary hardware, etc.) that may be required to use or run the Listed Programs or the ANSYS Simulation Tools, or (iii) any distribution activities.
The above covenant is personal to any given Customer and is non-transferable. By necessity, the covenant is conditioned upon the Customer or ANSYS providing Microsoft, upon its request, with sufficient information to verify which copies of Listed Programs qualify for the above covenant. Microsoft reserves the right to update (including discontinue) the above covenant pursuant to the terms of the Patent Cooperation Agreement between ANSYS and Microsoft; however, any covenant provided to specific copies of Listed Programs before such update shall survive under its initial terms and conditions.
Definitions
"ANSYS Simulation Tools" means the proprietary engineering simulation tool software designed and developed by or on behalf of ANSYS, and distributed by ANSYS, its Subsidiaries or Distributors during the Covenant Term under an ANSYS brand name and for which ANSYS has paid MLGP the appropriate Fees as defined in Exhibit B.
"ANSYS Site License" means a license entered during the Covenant Term between ANSYS and a Customer of ANSYS that authorizes such Customer to use the ANSYS Simulation Tools.
"Covenant Term" means the period beginning on October 7, 2009 and ending on the Termination Date.
"Covered Patents" means Patents that have a priority date prior to the Termination Date that read on the Listed Programs when used in combination with the ANSYS Simulation Tools which Microsoft or any of its Subsidiaries now or hereafter (i) owns or controls, or (ii) has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.
"Customers" means an enterprise or individual that uses an ANSYS Simulation Tool as authorized by ANSYS under an ANSYS Site License.
"Extendible Third Party Patents" means any Patent entitled, in whole or in part, to an effective filing date on or before the end of the Covenant Term, which is not owned or controlled by Microsoft or any of its Subsidiaries but under which Microsoft or any of its Subsidiaries now has or hereafter obtains the ability or right to grant a covenant not to sue or other freedom from suit to Customers of ANSYS, where the grant of the covenant or other freedom from suit to the Customers of ANSYS is contingent on the payment of consideration to a third party which (a) is not a Subsidiary of Microsoft or (b) at the time an invention claimed by the Patent was conceived, was not a Subsidiary of Microsoft or an employee or contractor of Microsoft or a Subsidiary of Microsoft.
"Listed Programs" means those components of the Mono project (as of the Effective Date) that are incorporated into, and distributed with, ANSYS Simulation Tools during the Covenant Term, but only to the extent such components are solely distributed under licenses (other than the GNU GPLv3, LGPLv3, any Affero license or equivalents) used to distribute the foregoing programs as of the Effective Date. However, Listed Programs include only those portions of the foregoing components that are needed to enable the use of ANSYS Simulation Tools and do not include (a) any Clone Products, including any components, other than the APIs currently implemented by Mono, that implement the Windows APIs, or (b) any new components of the Mono project released after the Effective Date unless such new components represent customary industry upgrades that do not integrate disparate programs or unrelated features or functionality."Patents" means any and all utility patents, utility models, utility patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and utility patent applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable utility patent right anywhere worldwide. Patents do not include design patents, design registrations, or trade dress rights.
"Subsidiary" means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only when such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only when such ownership or control exists.
"Term" means at least ten (10) years following October 7, 2009 unless terminated earlier in accordance with the terms of this Section 7. This Agreement shall automatically renew for additional one (1) year periods unless either party provides written notice of its desire to have the Agreement terminate at least two (2) years prior to any such renewal date.
"Termination Date" means the date of termination of this Agreement.IO Data Covenant to Customers
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue a Covenanted Customer for infringement under Microsoft's Covered Patents on account of such Covenanted Customer's use of a Subject Device (including the specific copy of any Listed Programs embedded in binary form therein) distributed by IO Data or its Subsidiaries; provided, however, that the appropriate Fee was paid by IO Data to Microsoft for the Reporting Period in which the Subject Device was distributed ("Covenant"). For the avoidance of doubt, a copy of a Listed Program embedded in a Subject Device by IO Data or its Subsidiaries prior to distribution of the Subject Device, to which bug fixes and minor updates are applied subsequently, remains covered by the above Covenant provided such bug fixes and minor updates do not add substantial new functionality; an upgrade (or a new version) of a specific copy is not covered by the Covenant unless the upgrade (or new version) was provided for revenue and the Fee was paid by IO Data to Microsoft for the Reporting Period in which the upgrade (or new version) was provided.
By necessity, the Covenant is conditioned upon the Covenanted Customer or IO Data providing Microsoft, upon its request, with sufficient information to verify which Subject Devices are subject to the Covenant. Microsoft reserves the right to update (including discontinue) the above Covenant pursuant to the terms of the Patent Agreement between IO Data and Microsoft having an Effective Date of February 1, 2010; however, any Covenant provided to Subject Devices before such update shall survive under its initial terms and conditions.
The foregoing Covenants shall survive for such Subject Devices distributed during the Term until the right to seek damages for use of such Subject Devices of any applicable Covered Patents expires.
Reservation of Rights. This Covenant is non-extendible, non-exclusive, non-transferable, and personal to the Covenanted Customer, and without limitation of the generality of the foregoing, shall not apply to IO Data, its Subsidiaries or their Distributors. No licenses or distribution rights are being granted or otherwise authorized by the limited, personal Covenant. Microsoft reserves all rights (and no other entities receive any rights) that are not expressly granted through this Covenant. No additional rights (including any implied patent licenses, covenants, releases or other rights) are granted through this Covenant by implication, estoppel or otherwise, including no rights under any additional patents of Microsoft. Microsoft is not bound by, nor grants any covenant or other right, nor incurs any other obligations as a result of, the terms of any license or other agreement with a third party (such as the GNU General Public License or any similar license) to which IO Data, its Subsidiaries, Distributors or Covenanted Customers may be subject.
Definitions
"Covenanted Customer" means an enterprise or individual that uses a Subject Device for its intended purpose as authorized by IO Data or its Subsidiaries. Enterprises or individuals are not Covenanted Customers to the extent they copy, resell, license, supply or distribute to third parties Subject Devices (or Listed Programs embedded therein) supplied by IO Data or its Subsidiaries.
"Covered Patents" means Patents entitled, in whole or in part, to an effective filing date on or before the end of the Term, under which Microsoft or any of its Subsidiaries now or hereafter (i) owns or controls, or (ii) has or obtains the ability or right to grant a license or freedom from suit to the other party or any of the other party's Subsidiaries. Covered Patents do not include Excluded Patent Claims.
"Listed NAS Programs" means object code forms of (1) the Linux Kernel version 2.6.22 or earlier, (2) Samba version 3.0.X or earlier and (3) Apache HTTP Server version 2.1.11 or earlier, available for download as of the Effective Date at www.Kernel.org and us3.samba.org, respectively, (whether obtained there or otherwise), including subsequent versions of such programs released during the Term of this Agreement, provided such subsequent versions represent customary industry upgrades that do not integrate disparate programs or unrelated features or functionality. Listed NAS Programs include only those portions of the foregoing that are actually used in an OSS NAS Device and do not include other technology that may be distributed with or running in connection with such Listed NAS Programs, (e.g. OpenOffice, WINE, Mono or PHP). Notwithstanding the foregoing, Listed NAS Programs do not include any code licensed under the GNU General Public License version 3, the GNU Lesser General Public License version 3, the GNU Affero General Public License version 3, or equivalents thereof.
"Listed Router Programs" means object code forms of the Linux Kernel version 2.6.22 or earlier available for download as of the Effective Date at www.Kernel.org, including subsequent versions of such programs released during the Term of this Agreement, provided such subsequent versions represent customary industry upgrades that do not integrate disparate programs or unrelated features or functionality. Listed Router Programs include only those portions of the foregoing that are actually used in an OSS Router Device and do not include other technology that may be distributed with or running in connection with such Listed Router Programs, (e.g. OpenOffice, Apache, WINE, Mono or PHP). Notwithstanding the foregoing, Listed Router Programs do not include any code licensed under the GNU General Public License version 3, the GNU Lesser General Public License version 3, the GNU Affero General Public License version 3, or equivalents thereof.
"Listed Programs" means Listed Router Programs with respect to OSS Router Devices and Listed NAS Programs with respect to OSS NAS Devices.
"OSS NAS Device" means a Network Attached Storage Device of IO Data or its Subsidiaries, in which a copy of a Listed NAS Program is embedded, except for any portions or components of the Network Attached Storage Device that are Foundry Products, Clone Products or Excluded Software (other than the Listed NAS Program).
"OSS Router Device" means a Router Device of IO Data or its Subsidiaries, in which a copy of a Listed Router Program is embedded, except for any portions or components of the Router Device that are Foundry Products, Clone Products or Excluded Software (other than the Listed Router Program).
"Subject Devices" means OSS Router Devices and OSS NAS Devices.
"Subsidiary" means, with respect to any Party, any entity that directly or indirectly is Controlled by such Party.National Instruments Covenant to Customers
Microsoft Corporation ("Microsoft"), on behalf of itself and its Subsidiaries, hereby covenants not to sue a Customer of National Instruments Corporation ("National Instruments") for infringement under Microsoft's Covered Patents on account of such Customer's use of Listed Programs solely for the purpose of using LabVIEW Software (as such Listed Programs and LabVIEW Software are distributed and licensed under a LabVIEW License to such Customer by National Instruments during the Term) to create software and/or hardware test, control and embedded design applications. For the avoidance of doubt, the foregoing covenant does not apply to, and no license or other rights are provided to: (i) use of the Listed Programs for any purpose other than enabling the use of the LabVIEW Software, (ii) any resulting software and/or hardware applications, (iii) any enabling technologies (underlying operating system, necessary hardware, etc.) that may be required to use or run the Listed Programs or the LabVIEW Software, or (iv) any sales or other distribution activities.
The above covenant is personal to any given Customer and is non-transferable. By necessity, the covenant is conditioned upon the Customer or National Instruments providing Microsoft, upon its request, with sufficient information to verify which copies of Listed Programs qualify for the above covenant. Microsoft reserves the right to update (including discontinue) the above covenant pursuant to the terms of the Patent Cooperation Agreement between National Instruments and Microsoft; however, any covenant provided to specific copies of Listed Programs before such update shall survive under its initial terms and conditions.
The foregoing covenant shall survive for the duration of any given LabVIEW License.
Definitions
"Covered Patents" means Patents that have a priority date prior to the Termination Date that read on the Listed Programs when used in combination with the LabVIEW Software which Microsoft or any of its Subsidiaries now or hereafter (i) owns or controls, or (ii) has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.
"Customers" means an enterprise or individual that uses the LabVIEW Software to create software and/or hardware applications for test, control and embedded design as authorized by National Instruments or its Subsidiaries under a LabVIEW License.
"LabVIEW Software" means the proprietary software product known as LabVIEW™ that is an integrated development environment designed and developed by National Instruments for creating software and/or hardware test, control and embedded design applications and is either (i) distributed and sold for any revenue by National Instruments, its Subsidiaries, or its Distributors together with a Listed Program as a single product offering during the Term under a National Instruments brand name and for which National Instruments has paid MLGP the appropriate Fees as defined in Exhibit B or (ii) distributed by National Instruments, its Subsidiaries, or its Distributors together with a Listed Program as a single product offering during the Term under a National Instruments brand name to Customers that are associated with a bona fide academic institution and who have acquired a National Instruments academic license.
"LabVIEW License" means a license entered during the Term between National Instruments or its Subsidiaries and a Customer of National Instruments or its Subsidiaries that authorizes such Customer to use the Listed Programs as part of LabVIEW Software only for creating software and/or hardware test, control and embedded design applications and not any other purpose.
"Listed Programs" means those Mono and/or Moonlight components of the Mono project (described at www.mono-project.com and www.mono-project.com/docs/web/moonlight or their logical successors) that are incorporated into, and distributed with, LabVIEW Software during the Term, but only to the extent such components are solely distributed under licenses (other than the GNU GPLv3, LGPLv3, any Affero license or equivalents) used to distribute the foregoing programs as of the Effective Date. However, Listed Programs include only those portions of the foregoing components that are needed to enable the use of LabVIEW Software and do not include any new components of the Mono project released after the Effective Date unless such new components of the Mono project released after the Effective Date represent customary industry upgrades that do not integrate disparate programs or unrelated features or functionality beyond those made available in Microsoft's .NET Framework. "Patents" means any and all utility patents, utility models, utility patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and utility patent applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable utility patent right anywhere worldwide. Patents do not include design patents, design registrations, or trade dress rights.Turbo Linux Covenant to Customers
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue a Customer in a Covered Country for infringement under Microsoft's Covered Patents on account of such Customer's use of a specific copy of a Covered Product as originally distributed by Turbolinux; provided, however, that the Fee applicable to the Covered Country was paid for the specific copy. For the avoidance of doubt, a specific copy to which bug fixes and minor updates are applied is considered the same copy and remains covered by the above covenant provided such bug fixes and minor updates do not add substantial new functionality; an upgrade (or a new version) of a specific copy is treated as two different copies.
The above covenant is personal to any given Customer and is non-transferable. By necessity, the covenant is conditioned upon the Customer and/or Turbolinux providing Microsoft, upon its request, with sufficient information to verify which copies of Server Offerings are Covered Products subject to the covenant. Microsoft reserves the right to update (including discontinue) the above covenant pursuant to the terms of the Patent Cooperation Agreement between Turbolinux and Microsoft that was publicly announced on October 23, 2007; however, any covenant provided to specific copies of Covered Products before such update shall survive under its initial terms and conditions.
The foregoing covenants shall survive for such specific copies of Covered Products distributed during the Term until the right to seek damages for use of such specific copies under the last of any applicable Covered Patents expire.
Definitions of capitalized terms used above may be found in the Definitions section below.
Definitions
"Covered Products" means a specific copy of a Server Offering that is used in a Covered Country and for which Turbolinux has paid MLGP the Fee applicable to the Covered Country, but only to the extent that software components of such specific copy of the Server Offering are not (i) GPL v3 Components or (ii) Foundry Products, Clone Products or Other Excluded Products. Covered Products do not include Free Downloads.
"Covered Patents" means Patents issuing in the Covered Countries and entitled to effective filing dates prior to October 22, 2010 that cover the Covered Products and that Microsoft or any of its Subsidiaries now or hereafter (i) owns or controls, or (ii) has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.
"Covered Countries" means China (which shall include Hong Kong (SAR) and Macau (SAR) as well as the geographic region referred to by the United Nations as Taiwan), India, Vietnam, Singapore, Thailand, The Philippines, Malaysia, Republic of Korea, Indonesia (each an "Asian Country”) and Japan.
"Customers" means an enterprise or individual that utilizes a specific copy of a Covered Product for its intended purpose as authorized by Turbolinux, either directly or through a Turbolinux Subsidiary. Enterprises or individuals are not Customers when they resell, license, supply, distribute or otherwise make available to third parties such specific copy or additional copies of the Covered Product. For avoidance of doubt, an enterprise or individual cannot qualify both as a Customer and Distributor for use of the same copy of a Covered Product.
"Subsidiary" means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only when such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only when such ownership or control exists. Notwithstanding the foregoing, the parties agree that Turbolinux China Co, Ltd ("Turbolinux China”), a company having its primary place of business at Suite 503,5F NCI Tower, A12 Jianguomenwai Avenue, Chaoyang District, Beijing 100022 PRC, shall be treated as a Subsidiary of Turbolinux as long as (1) Turbolinux retains rights to control the manufacture and distribution of products of Turbolinux China, including the right to audit Turbolinux China for compliance with the terms and conditions of this Agreement, ("Control Rights”) that are no less than such Control Rights of Turbolinux as of the Effective Date, (2) Turbolinux China satisfies either of the foregoing parts (a) or (b) of this definition of Subsidiary if forty-five percent (45%) is substituted for fifty percent (50%) in such foregoing parts (a) and (b), and (3) Turbolinux China satisfies the obligations of a Subsidiary under the terms of this Agreement. Solely for purposes of Section 8.2 of this Agreement, a Qualifying Subsidiary means an entity that satisfies either of the foregoing parts (a) or (b) of this definition of Subsidiary if "Qualifying Company” is substituted for "party” in such foregoing parts (a) and (b).Xandros Covenant to Customers
Microsoft, on behalf of itself and its Subsidiaries, hereby covenants not to sue a Customer of Xandros for infringement under Microsoft's Covered Patents on account of such Customer's use of specific copies of Covered Products as distributed by Xandros during the Term. For the avoidance of doubt, bug fixes and minor updates to a specific copy is considered the same copy and remains covered by the above covenant provided such bug fixes and minor updates do not add substantial new functionality; an upgrade (or a new version) of a specific copy is treated as two different copies.
The above covenant is personal to any given Customer and is non-transferable. By necessity, the covenant is conditioned upon the Customer providing Microsoft, upon its request, with sufficient information to verify which copies of Client Offerings and Server Offerings are Covered Products subject to the covenant. Microsoft reserves the right to update (including discontinue) the above covenant pursuant to the terms of the Patent Cooperation Agreement between Xandros and Microsoft that was publicly announced on June 4, 2007; however, any covenant provided to specific copies of Covered Products before such update shall survive under its initial terms and conditions.
The foregoing covenants shall survive for such specific copies of Covered Products distributed during the Term until six years after the last of any applicable Covered Patents expire.
Definitions of capitalized terms used above may be found in the Definitions section below.
Definitions
"Client Offerings" means any products of Xandros that include the Linux operating system and are used only on a client laptop or client desktop computer. Examples of Client Offerings include Xandros Desktop product offerings running on a client laptop or desktop computer.
"Covered Products" means specific copies of (1) Client Offerings for which a Customer has paid Xandros for a Patent SKU and MLGP has received the applicable Fee, and (2) Server Offerings for which Xandros has paid MLGP the applicable Fee; provided such specific copies of Client Offerings and Server Offerings do not comprise or include Foundry Products, Clone Products or Other Excluded Products. Covered Products do not include Free Downloads, BRIC Server Offerings or BRIC Client Offerings.
"Covered Patents" means Patents that cover the Covered Products which Microsoft or any of its Subsidiaries now or hereafter (i) owns or controls, or (ii) has the ability or right to grant a release, covenant not to sue or other freedom from suit. Covered Patents do not include Extendible Third Party Patents.
"Customers" means an enterprise or individual that utilizes a specific copy of a Covered Product for its intended purpose as authorized by Xandros. Enterprises or individuals are not Customers when they (1) resell, license, supply, distribute or otherwise make available to third parties such specific copy or additional copies of the Covered Product; or (2) resell, license, supply, or distribute the output of SDKs or developer kits they utilize as a Customer. For avoidance of doubt, an enterprise or individual cannot qualify both as a Customer and Distributor for use of the same copy of a Covered Product.
"Server Offerings" means any products of Xandros that include the Linux operating system and are used on a server or any non-client computer (but not including Mainframes). Examples of Server Offerings include Xandros Server product offerings.
"Subsidiary" means any entity (a) more than fifty percent (50%) of whose outstanding shares or securities representing the right to vote for the election of directors or other managing authority are, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only when such ownership or control exists; or (b) which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, but more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such entity is, now or hereafter, owned or controlled, directly or indirectly, by a party, but such entity shall be considered a Subsidiary only when such ownership or control exists.
"Term" means the period beginning on the Effective Date and, unless extended pursuant to Section 7.1, ending on the earlier of (i) five (5) years from the Effective Date, or (ii) the date of termination of this Agreement.
"Patent SKU" means patent coverage from Microsoft purchased for a copy of a Client Offering under the terms set forth in the Covenant to Customers.
"Foundry Product" means a product which is either (a) designed by a third party (or designed for a third party other than by Xandros) without substantial input from Xandros and made, reproduced, sold, licensed, or otherwise transferred by Xandros, on essentially an exclusive basis, (i) to that third party, or (ii) to that third party's customers, or (iii) as directed by that third party; or (b) made, reproduced, sold, licensed or otherwise transferred through or by Xandros for the primary purpose of attempting to make such product subject to the covenants under the Covered Patents of Microsoft so that a third party's customers can receive the benefit of such covenants.
"Clone Product" means a product (or major component thereof) of Xandros that has the same or substantially the same features and functionality as a then-existing product (or major component thereof) of Microsoft ("Prior Product") and that (a) has the same or substantially the same user interface, or (b) implements all or substantially all of the Application Programming Interfaces of the Prior Product. Those portions of a product that are otherwise licensed to Xandros from Microsoft shall not be considered in determining whether the product is a Clone Product. Except for Wine, OpenXchange, StarOffice, OpenOffice, CrossOver Office and Mono, the Parties agree that versions of products sold, licensed, supplied, distributed or otherwise made available by Xandros for Revenue before the Effective Date ("Existing Products") will not be deemed to be Clone Products.
"Other Excluded Products" means (a) office productivity applications (word processing, spreadsheets, presentation software, etc.) of Xandros that are hosted by or running on a computer acting as a server for a connected client device, (b) any software embedded or otherwise running in any devices (printers, cameras, game consoles, set-top boxes, phones, handheld devices, TVs, etc.) other than personal computers, workstation computers, or server computers (not including Mainframes), (c) any protocol functionality to the extent such functionality is licensed to Xandros [REDACTED], and (d) new features and functions in the following categories of products: (i) video game consoles (e.g., Xbox video game consoles), console games, video game applications designed to run on a computer, and on-line video gaming services (e.g., Xbox live); (ii) business applications designed, marketed and used to meet the data processing requirements of particular business functions, such as accounting, payroll, human resources, project management, personnel performance management, sales management, financial forecasting, financial reporting, customer relationship management, and supply chain management; (iii) email servers (including mail transfer agents); and (iv) unified communications.
"Free Downloads" means specific copies of Client Offerings and Server Offerings that are downloaded for free from a publicly available website of Xandros. Free Downloads do not include any copies of Client Offerings or Server Offerings for which Xandros receives any revenue or other consideration.
"BRIC Server Offerings" means Server Offerings Distributed in Brazil, Russia, India or China by Xandros or its Subsidiaries.
"BRIC Client Offerings" means Client Offerings Distributed in Brazil, Russia, India or China by Xandros or its Subsidiaries.
"Patents" means any and all utility patents, utility models, utility patent registrations, and equivalent rights (including, without limitation, originals, divisionals, provisionals, results of reexamination, continuations, continuations-in-part, extensions or reissues), and utility patent applications for the foregoing, in all countries of the world, and any other procedure or formality with respect to the aforesaid that can result in an enforceable utility patent right anywhere worldwide. Patents do not include design patents, design registrations, or trade dress rights.
"Extendible Third Party Patents" means any Patent entitled, in whole or in part, to an effective filing date on or before March 27, 2012, which is not owned or controlled by Microsoft or any of its Subsidiaries but under which Microsoft or any of its Subsidiaries now has or hereafter obtains the ability or right to grant a covenant not to sue or other freedom from suit to customers of Xandros, where the grant of the covenant or other freedom from suit to the customers of Xandros is contingent on the payment of consideration to a third party which (a) is not a Subsidiary of Microsoft or (b) at the time an invention claimed by the Patent was conceived, was not a Subsidiary of Microsoft or an employee or contractor of Microsoft or a Subsidiary of Microsoft.
"Distributors" means resellers and distributors to the extent they are authorized by Xandros (directly or indirectly) to resell, license, supply, distribute or otherwise make available Covered Products of Xandros.
"Mainframes" means high performance computers, such as the IBM's zSeries and System z high performance computers, any equivalent offerings and any offerings marketed as "mainframes."
"Effective Date" means March 27, 2007.
"Applications Programming Interfaces" means a set of one or more routines or interfaces provided by a software program (including an operating system, middleware or other software application) that are used to invoke or direct functions or services of such software program for use by other software programs.
"Revenue" means any consideration to Xandros that is reasonably attributable to the sale, license or other distribution of Client Offerings. The parties agree that the definition of Revenue is based on the current revenue model of Xandros for Client Offerings, and that if such revenue model materially changes during the Term, Xandros will promptly give written notice to Microsoft and the parties will negotiate a new Revenue definition in good faith. The current definition of Revenue shall remain the same during such good faith negotiations.