OEM CLA Version 4.1- Part 2
Contents
1. 1 Regarding a Trade Secret Claim MS has no duty under this Agreement if Company acquired a Trade Secret i Through improper means ii Under circumstances giving rise to an independent duty by Company to maintain secrecy or limit the use of the Trade Secret or 12 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 iii From a person other than MS or its Suppliers who owed to the party asserting the Trade Secret Claim a duty to maintain the secrecy or limit the use of the Trade Secret 2 Regarding a patent Claim MS obligations under this Agreement shall be limited to patent Claims where the Product software excluding Sample Code alone without combination or modification constitutes direct or contributory infringement of such patent Claim 3 Regarding any Claim MS has no duties under this Agreement if any manufacture use sale offer for sale importation or other disposition or promotion of the Product or trademark by Company violates this Agreement or the ATs but only to the extent that such infringement claim results from such violation 4 MS has no duties under this Agreement for any Claim unless the following are satisfied i Company must promptly notify MS in writing of the Claim ii MS must have sole control over defense and settlement of the Claim and iii Company shall provide MS with reasonable assistance in the defense of the Claim c Oth2. If this is not physically possible Company must receive through its MS Distributor MS advance approval to attach the COA to one of the following alternatives the APM the License Terms recovery media or Company s end user manual distributed with the Embedded System Company shall also distribute the APM if any with each Embedded System Company must not distribute APM or COAs separate from the Embedded System or make these available through any other means or channel For example Company must not sell give or otherwise transfer APM or COAs to any third party except as required by this section 2 1 Test Units Company may install and use copies of the MS Binaries as part of an Image used solely to test Embedded Systems Test units are limited to 100 copies of each Product These copies may only be used in non production environments on Company premises No COAs are required for these copies but the Embedded System must be clearly marked Test Units Not for Sale or the equivalent There is no royalty owed to MS for these copies License Terms Company must distribute License Terms with each Embedded System Additional Terms and Supplements 1 Company must comply with the ATs 2 The following provisions apply to Supplements i The terms and conditions of the applicable AT will apply to any Supplement made available to Company Company is licensed for Supplement only if Company is licensed for the Product that is supplement
3. 4 To suspend all activities under the Sublicense upon notice from Company or MS MS will notify Company before requiring an Integrator to suspend its activities 5 To return at no expense to MS all Deliverables including APM and COAs and any portions of these within 10 days after the Sublicense terminates All returns shall be to Company a specified MS Distributor or MS as directed 6 To pay MS or Company s attorneys fees if either employs attorneys to enforce any rights arising from the Sublicense c Each Sublicense with an Integrator must require the Integrator 1 To use the Deliverables only on the Integrator s premises 2 To only allow its employees and 3P Contractors to access and use the Deliverables Access and use must take place on Integrator s premises 3 To comply with requirements that are the same as those imposed on Company by this Agreement 4 To deliver the Image applications and software drivers it creates only to Company 5 Termination Suspension 17 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 a Company shall promptly terminate or suspend any affected Sublicense if 1 Company knows that an Integrator has breached a material provision of a Sublicense 2 MS notifies Company of such a breach or 3 An Integrator has caused Company to be in breach of a material provision of this Agreement or an AT b Company may resume u
4. and test an Image or related software for an Embedded System an Integrator 3P Contractors mean individuals under an Integrator s direct supervision and control 3P Contractors are engaged to perform services under a contract that includes appropriate non disclosure and other promises sufficient to satisfy that Integrator s obligations under the Sublicense 2 Integrator Rights Each Integrator shall have the right to use the Deliverables only as required to create an Image applications or software drivers in connection with the Embedded System Such rights are subject to all of the terms in this Schedule remaining satisfied at all times 3 Adding New Integrators a At least 30 days before Company intends to engage a third party as an Integrator Company shall provide MS with the name address and business profile of that third party The business profile must include years in business ownership profile tradenames used principle business activities and a summary of any prior experience with installing or copying MS products All of this information must be in English b Company must receive MS written approval of the Integrator prior to allowing it to begin work under this Schedule MS written approval is not required if all of the following are true 1 The third party was approved as an Integrator by MS in writing under a prior Agreement between MS and Company 2 MS has not notified Company that such third party mu
5. external media containing software and or other tangible materials related to the Product APM does not include COAs COA or Certificate of Authenticity means a non removable sticker designated by MS as specific to the Product Channel means Company s distributors dealers resellers and others in Company s distribution chain for Embedded Systems Company Binaries means all software other than MS Binaries installed by or on behalf of Company on an Embedded System Company Binaries include Embedded Applications Contractors mean individuals under Company s direct supervision and control Contractors must be engaged to perform services under a contract that includes appropriate non disclosure and other promises sufficient to satisfy Company s obligations under this Agreement All Contractor services must be performed on Company s sites DOC means the Digital Operations Center located at https ops microsoftoem com or any successor URL provided by MS Default Charge means an amount owed as liquidated damages for the unauthorized distribution of Product software recovery media or COAs The Default Charge for each Product is 130 of the royalty for the Product excluding discounts and rebates less any royalty paid Deliverables means the Product software OPK including tools and utilities APM COAs and other items identified by MS as Deliverables Deliverables are used for reproduc
6. following non exclusive limited worldwide license rights 1 To order and acquire Deliverables and COAs for Products from MS Distributors 2 To use Deliverables to reproduce MS Binaries as part of an Image only on Company premises by Company employees or Contractors for installation on Embedded Systems 3 To use Deliverables to install one copy of the MS Binaries as part of an Image on the hard disk drive or in the non volatile solid state memory of an Embedded System only on Company premises by Company employees or Contractors 4 To distribute directly and indirectly Embedded Systems containing an Image if i a COA is included with the Embedded System in accordance with section 2 1 and ii Company sublicenses such Image to an End User by means of License Terms iii Company must acquire a Runtime License Envelope for the Product from an MS Distributor to distribute an Embedded System with that Product 5 To distribute Update Images and Recovery Images to End Users in accordance with the terms and conditions below b Embedded System Design An Embedded System must not be marketed or useable as a general purpose personal computing device such as a personal computer or a multi function server or a commercially viable substitute for one of these systems 7 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 1 Ifthe Embedded System performs Desktop Functions Comp
7. OEM CLA Version 4 1 Part 2 Part 2 of the Microsoft OEM Customer License Agreement for Embedded Systems Important Company does not need to send this Part 2 to the Distributor Company must keep on file this Part 2 together with Part 1 executed and returned by MS Terms 1 Definitions ATs or Additional Terms formerly ALPs or Additional Licensing Provisions means licensing terms and conditions for the Product on the Additional Terms label affixed to the Runtime License Envelope Courtesy copies of the ATs are available for Company review from MS Distributor If there are conflicting or inconsistent terms between the AT on the Runtime License Envelope and the courtesy text presented by MS Distributor the former shall control Additional Rights Agreements means additional agreements that incorporate the terms of this Agreement including e the Microsoft OEM Customer License Agreement for Use of Third Party Brand Names and Trademarks e the Microsoft OEM Customer License Agreement for Outsource Manufacturers and e the Microsoft OEM Customer License Agreement for Field Upgrades Additional Software means software that is added to the Embedded System after installation of the original Image and that supports the functions of the Embedded Application APM means associated product materials MS designates from time to time as a part of the Product Examples of APM include documentation
8. S Binaries included in an Update or Recovery Image if it is provided to the End User i Without additional cost or ii With additional cost if the only cost is a reasonable amount for shipping and handling g Excluded License 1 License rights to any Product or any MS or MS Affiliate intellectual property associated with that Product do not include any license right power or authority to subject the Product software or derivative works in whole or in part to any of the terms of an Excluded License 9 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 2 Subject to this Agreement Company may distribute the Products with i any software that is not subject to an Excluded License ii software that is subject to an Excluded License if distributed in a manner that does not subject or purport to subject the Products or any MS or MS Affiliate intellectual property related to the Products to the terms of an Excluded License MS Distributor Information The terms and conditions of this Agreement including ATs shall control over any conflicting or inconsistent terms regarding the Product contained in any document or information that Company may receive from any MS Distributor COAs and APM Unless the Product ATs indicate that a COA is not required Company must permanently affix the applicable COA for each Product to an accessible location on each Embedded System
9. a Third Party Service Provider s possession in accordance with MS Distributor s return policies Company may keep one unit of Deliverables of each Product for support purposes only f Upon termination or expiration of this Agreement Company its Channel and OMs shall stop distributing Products Company s license rights under this Agreement shall end g Surviving Terms Sections 1 2 q 3 5 6 7 8 9 12 13 14 15 and 16 shall survive termination or expiration of this Agreement 13 Notices a All notices must be in writing on Company letterhead and signed by an authorized representative of Company Company Written Notice b Company may also provide notice by sending the scanned Company Written Notice by 1 Fax to the fax number listed in the Notices Schedule or 2 Email at the email address listed in the Notices Schedule c The parties must address all notices authorizations and requests related to this Agreement as stated in the Notices Schedule Notices will be deemed received seven days after any of the following occur 1 Fora notice address in the U S A When the notice is deposited in the U S A mails postage prepaid certified or registered return receipt requested 2 Fora notice address in a member country of the European Union EU or European Free Trade Association EFTA When the notice is deposited in the EU or EFTA mails prepaid recorded delivery 3 When the notice is sent by a
10. any executed this Agreement as indicated in the signature block above Supplement or Supplemental Code means a supplement to replacement of or re release of any part of a Product or OPK Additional terms for Supplements are set forth in Supplement letters Supplement Letters Suppliers means MSCORP and other licensors or suppliers of Product or portions of a Product Support Software means systems utilities resource management anti virus software or similar software used solely for the purpose of administration performance enhancement and or preventive maintenance of the Embedded System Third Party Software Provider means a third party who installs Additional Software created or rightfully licensed by that Third Party Software Provider which supports the Embedded Application installed on a Embedded System prior to final delivery to an End User Trade Secret has the same meaning as in the Uniform Trade Secrets Act Update means an Update Image or a Supplement Update Image means an Image that consists of a an updated version of the MS Binaries such as a Supplement or b an updated version of the Company Binaries or c an updated version of the MS Binaries and an updated version of the Company Binaries An Update Image may include the previously distributed version of the MS Binaries or the Company Binaries but not both License Grants and Limitations a MS grants to Company the
11. any shall design the Embedded System to ensure that the Desktop Functions meet the following requirements i Desktop Functions must be an integral primary part of the Embedded Application ii Desktop Functions must only be used in support of and accessed through the Embedded Application iii Desktop Functions operate only when used with the Embedded Application 2 Company must not distribute Embedded Systems that include both a Product and non embedded version of a Microsoft operating system product 3 Company may distribute more than one Product or copies of the same Product on the same Embedded System but only if all configurations of the Embedded System containing such Products individually or in combination comply with the terms and conditions of this Agreement 4 Each Embedded System must contain an Image that includes an Embedded Application Company must own or maintain effective licenses for all Company Binaries included in the Image Each Embedded Application must be installed on the Embedded System before delivery to the End User or the Channel if applicable However for distributions to Enterprise Customers where the Embedded System is designed and marketed for one of the industries listed on the ECE under Enterprise Customer Industry List the Embedded Application may be installed by the Enterprise Customer Company shall provide Enterprise Customers with clear installation and use instructions for Embedded Applications t
12. burse MS and MSCORP for all damages costs and expenses including reasonable attorneys fees they incur if Company conducts any activities contrary to such recommendation more than 20 days after the date of MS notice 2 Ifin connection with a claim including a Claim a court enjoins Company from distributing Products in its inventory and i Such injunction is not lifted within 60 days ii MS has not procured a license that enables Company to distribute the enjoined Products and iii MS has not modified such Products to make them non infringing within such 60 days then such Products will no longer be available for distribution under this Agreement Company will return any corresponding COAs in accordance with section 8 and the then current Resource Guide 8 Audit a COA Records Company will maintain accurate and complete COA and APM records b COA Returns Company may return Runtime License Envelopes Each return must comply with the MS Distributor s return policies and the returns and destruction process and procedure on the ECE c COA Reports Company will account for COAs in inventory on a quarterly basis COAs in inventory include COAs at Company facilities and with OMs The COA accounting will reconcile beginning and ending COA inventory COA acquisitions from MS Distributors COA distribution with Embedded Systems End User returns and COAs affixed to Embedded Systems or other APM that cannot be distributed for any reason Company w
13. d Microsoft OEM Customer License Agreement for Use of Third Party Brand Channel 1 Company must enter into a contract or other written instrument that is reasonably intended to form a contract with each member of its Channel with which it has a direct business relationship The contract must include the following terms i The Channel must deliver the COA and APM together with each Embedded System and ii The Channel must not advertise give a separate price for or otherwise market or distribute the Products or any part of a Product as a separate item from the Embedded System 2 If Company becomes aware that a Channel member is not complying with these terms Company must immediately notify MS 3 Ifa member of its Channel breaches these terms Company must stop distributing Product to that member within 10 days of becoming aware of the breach unless the Channel member has cured that breach within that time 10 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 4 Company must stop any distribution of Product to a Channel member immediately upon notice by MS if MS reasonably determines that i the Channel member is unlikely to cure its breach or ii immediate action is required to protect Microsoft intellectual property 5 Company must give MS reasonable assistance if MS chooses to investigate a Channel member s breach of these terms Third Party Software Pro
14. des where applicable installation instructions utilities Product software and or Supplements delivered to Company for installing the applicable Product software on the Embedded System Products means the Microsoft products licensed under this Agreement including the applicable ATs Product includes where applicable MS Binaries Sample Code other software COA APM and any Supplement With the exception of some Sample Code MS does not provide Product in source code form Product Keys means a key used to install Microsoft products Product Keys are located either on a flyer in the OPK or on the installation CD of the Product itself Company will enter the Product Key when it installs the Product onto the Embedded System during testing and development Some Products do not have Product Keys Recovery Image means a copy of the Image as originally installed on the Embedded System A Recovery Image is used to reinstall the Image Resource Guide means the Mobile and Embedded Resource Guide posted on the ECE It contains general licensing operational and Product ordering information but not licensing terms MS reserves the right to modify the Resource Guide with 90 days notice Any part of the Resource Guide that conflicts with any term or condition of this Agreement or an AT shall not apply to this Agreement or that AT Runtime Key means a series of characters that serves to identify the Product Runtime Keys are pr
15. e exercise of personal jurisdiction by these courts Company agrees for the benefit of MS and MS Affiliates that the courts of Ireland will have jurisdiction to hear and determine any suit action or proceedings that may arise out of or in connection with this Agreement Each party agrees that it cannot revoke this consent Injunctive Relief This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement Attorneys Fees If either party employs attorneys to enforce any rights related to this Agreement the primarily prevailing party will be entitled to recover its reasonable attorneys fees costs and other expenses 15 Government Regulations a Applicable Laws and Regulations The Products and their OPKs are subject to U S and European Union export jurisdiction Releases or versions of certain Products and the Deliverables may be subject to particular restrictions under the laws and regulations of a certain country or territory MS Parties and Company will comply with all international and national laws and regulations that apply to the Products or their performance under this Agreement These laws include i U S Export Administration Regulations ii All applicable anti co
16. e terms of use and uses it to cause harm or damage to Company or MS then those acts taken with the Password Information will not be attributed to Company because of this Agreement However those acts may be attributed to MS Company or others under principles of equity or law DOC MS may provide additional or successor online tools or websites to be used by Company in the normal course of its business with MS Company agrees to use such resources for all intended purposes Access to Sites Only the Company Administrators may grant or terminate Users access to or other authorities for MOO and ECE Company Administrators must keep Password Information secure from unauthorized access Electronic Signature Tool As part of the MS OEM operations initiative MS may provide an online tool or website to be used by Company for digital signatures of OEM channel documents If Company elects to use the tool Company agrees to use such resource for all intended purposes 19 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems
17. ed ii MS will provide notice via Supplement Letter to inform Company whether the Supplement is required or optional If it is required Company agrees to use the Supplement and not to install use or distribute the code that was replaced The notice will tell Company when Company is required to start using the Supplement iii The notice will also let Company know if there are any additional or different license terms and conditions e IfCompany does not use the Supplement then the additional or different terms and conditions will not apply to Company e If Company uses the Supplement or if it is a required Supplement then Company must comply with the additional or different terms and conditions as set forth in the notice IP Notices Company must not remove or obscure any copyright trademark or patent notices that appear on the Product as delivered to Company Logos Company use of any logo of MS or MSCORP requires a separate logo license from MSCORP Logo licenses and standard guidelines are posted at http www microsoft com about legal intellectualproperty trademarks usage default mspx Not a Stand Alone Product Company must not advertise provide a separate price for or otherwise market or distribute any Product or any Image as a separate item from an Embedded System Third Party Brand Names Embedded Systems must be marketed licensed and distributed only under Company s brand names and trademarks and those marks listed in a vali
18. er Claims 1 Regarding any claim other than a Claim Company shall promptly notify MS in writing of such claim MS has no duty to defend Company or pay damages arising out of such claim 2 Company agrees that MS has the right in its sole discretion to assume at any time the defense of any such claim If MS assumes the defense of any such claim i MS will notify Company in writing of MS election ii MS must have sole control over the defense and settlement of the claim iii Company shall provide MS with reasonable assistance in the defense of the claim iv MS will defend Company against that claim and v MS will pay any adverse final judgment or settlement that MS consents to resulting from defending such claim d Additional Options In addition to the obligations in section 7 b if MS receives information concerning a claim including a Claim MS may at its expense but without obligation to do so undertake further actions such as 1 Procuring for Company such copyright patent trademark or Trade Secret rights or licenses to address the claim or 2 Replacing or modifying the Product or trademark to make it non infringing or stop the misappropriation of the Trade Secret e Notices Injunctions 1 MS may provide Company with notice of a recommendation that Company stop the manufacture use sale offer for sale importation or other disposition or promotion of Products or trademarks due to a claim including a Claim Company shall reim
19. ftware Company may distribute additional software with a Recovery Image if it is needed to install or use the Recovery Image as intended Company must own or maintain licenses for the additional software f Terms applicable to all Updates and Recovery Images 1 Company must use License Terms to license End Users to use the Update or Recovery Image If the Supplement Letter for the Update includes new license terms then Company must update the License Terms for the Licensed Product accordingly Company must ensure the Update or Recovery Image can only be used on the applicable Embedded System Before the End User can use the Update or Recovery Image Company must ensure that a commercially reasonable authentication of the Embedded System is performed When installed the Update Image or Recovery Image must completely replace the existing Image End User data and or configuration settings may remain intact When installed a Supplement will update certain portions of the MS Binaries included in the existing Image Some End Users may have more than one unit of the same Embedded System with the same Image If so these End Users may use one copy of the Update or Recovery Image for all these units For example the Update or Recovery Image may be installed on all units of the same Embedded System via the End User s internal network and then used as described in this section For these End Users Company agrees to include in the License Terms t
20. hat Company distributes to an Enterprise Customer c Additional Software for Embedded Systems 1 Installation by End Users Company may allow End Users to install Support Software and Additional Software that supports the functions of the Embedded Application Any such Additional Software must be distributed by Company Company must provide clear installation and use instructions for any Additional Software or Support Software that Company distributes to an End User To the extent permitted under applicable law Company shall contractually prohibit End Users of Embedded Systems from i installing or using on the Embedded System any Additional Software that provides functions in addition to the Embedded Application unless that Additional Software was provided by Company and ii using Additional Software to access or use Desktop Functions other than through in support of and operating as a part of the Embedded Application 2 Installation by Enterprise Customers Company may allow its Enterprise Customers to install Support Software and Additional Software that supports the functions of the Embedded Application Company must provide clear installation and use instructions for any Additional Software or Support Software that Company distributes to an Enterprise Customer To the extent permitted under applicable law Company shall contractually prohibit Enterprise Customers from accessing and using Desktop Functions other than through in support
21. he number of authorized installations For example Authorized Number of Installations of Software __ Company will require its End Users to keep the Update or Recovery Image if it was delivered on separate media Once an Update is installed the End User may use the Update on its original media as a Recovery Image Company shall comply with the Media Guidelines for the labels and packaging of each Update or Recovery Image End User Downloads Company may distribute Updates or Recovery Images for this Licensed Product via Company s website as a download if all of the following conditions are satisfied i Company must make the Update or Recovery Image available only on the customer support section of its website or on a section that provides similar downloads ii Company must clearly state the purpose of the Update or Recovery Image and the Embedded System on which End Users may use the Update or Recovery Image iii Company must ensure the End User performs a click accept of the following statement before accessing the Update or Recovery Image This software is subject to the terms and conditions of the accompanying end user license terms This software is provided only for use with and for licensed end users of the lt Name and Model of the Embedded System gt Any other use of this software is strictly prohibited and may subject you to legal action No Royalty There is no additional royalty owed to MS for the M
22. ill make this accounting available to MS or MS Distributor upon request 13 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 Payments If Company discovers a discrepancy resulting in an underpayment to MS Company will pay MS if there is a difference between the number of COAs acquired by Company from MS Distributor and 1 The number of COAs distributed by Company and its OMs pursuant to this Agreement plus 2 The number of COAs that Company can verify are in the possession of Company and its OMs plus 3 The number of COAs properly returned to the MS Distributor The payment amount for each Product will be the difference in units multiplied by the royalty rate for the Product Records During the term of this Agreement and for two years after Company must keep complete and accurate records relating to its performance under this Agreement Those records include complete financial statements and all documents related to acquisition reproduction installation distribution and other disposition of each COA and unit of APM Compliance Audit During the term of this Agreement and the following two year period MS may have Company s premises audited to verify compliance with this Agreement Company must make the premises available for audit for 45 days after MS written request This audit includes the records listed in section 8 e that are normally kept at that site In additio
23. ing configuring and or installing MS Binaries as part of an Image Company shall acquire Deliverables from MS Distributors Desktop Functions means consumer or business tasks or processes performed by a computer or computing device This includes email word processing spreadsheets database network Internet browsing scheduling and personal finance Desktop Functions may include features and functions derived from the MS Binaries or the Company Binaries Documentation means the documentation that MS includes with the Deliverables for a Product ECE means the Mobile amp Embedded Communications Extranet which is the Internet site located at https ece partners extranet microsoft com ece or any successor URL provided by MS The ECE is made available to Company as an informational resource Embedded Application means an industry or task specific software program and or functionality with all of the following attributes a It provides the primary functionality of the Embedded System b Itis designed to meet the functionality requirements of the specific industry into which the Embedded System is marketed c It offers significant functionality in addition to the Product software Embedded System means a computing system or device with an Image that is designed for and distributed with an Embedded Application End User means a person company or other legal entity that acquires an Embedded Sys
24. ir express courier charges prepaid 4 Ifthe notice is by MS regarding updates or changes to MS information instructions or forms Seven days after notice is sent via email or posted on MOO or the ECE 5 For fax or email notices sent by Company Seven days after notice is sent via fax or email d Notices Schedule Company shall keep all information in the Notices Schedule complete and current Company shall notify MS of any changes as set forth in section 13 b e Ifthere has been a company name change MS may require Company 15 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems f OEM CLA Version 4 1 Part 2 1 to provide MS with additional information and relevant documents relating to the circumstances of the change and 2 to enter into a new Agreement as a result of the change if it is determined that there has been a change in ownership Information posted on the ECE may change without notice until the effective date of such information MS may correct errors in information posted on the ECE or update posted documents after the Start Date by providing notice to Company 14 Choice of Law Jurisdiction and Venue Attorneys Fees a Governing Law Jurisdiction The laws of Ireland govern this Agreement and any claims for breach of it regardless of conflict of laws principles The courts of Ireland are the exclusive venues for all disputes arising from this Agreement Each party consents to th
25. lly breaches this Agreement or any AT 2 Manufactures or distributes any MS Party product that is not licensed under a valid agreement with an MS Party or 3 Becomes insolvent enters bankruptcy or similar proceedings under applicable law admits in writing its inability to pay its debts or makes or attempts to make an assignment for the benefit of creditors b Notice for Material Breach If Company materially breaches an AT or sections 2 8 or 9 termination shall be effective upon notice to Company c Notice for Bankruptcy If any of the events in section 12 a 3 occurs then Termination is effective upon notice to Company or as soon as is permitted by applicable law and Company s license rights under this Agreement will be suspended as of the date such event occurs d Cure Period In the event of breach of any provision of this Agreement except those identified in sections 12 b and 12 c but including non material breaches of sections 2 8 or 9 Company shall have 30 days from the date of notice to cure such breach If Company does not cure such breach within 30 days MS may suspend or terminate this Agreement e Return Upon Termination or Expiration Within 10 days after termination or expiration if the parties do not promptly enter into a successor agreement of this Agreement Company shall at Company s expense return the Deliverables and Products including any APM and COAs in its possession as well as those in
26. n MS may have Company s records for multiple sites audited to verify compliance with this Agreement Company must make the records available at one location Audit Terms MS will choose an independent and internationally recognized certified public accountant or chartered accountant to perform the audit The auditors will preserve the confidentiality of Company s confidential information in accordance with applicable professional standards Company agrees to give the audit team access to all of Company s relevant records and premises with the following limits 1 Access is limited to i those areas where COAs and APM are stored and used where the Products are copied stored installed used and distributed and ii the records listed in section 8 2 Company personnel may escort the auditors on Company s premises 3 The audit will take place during Company s regular business hours 4 The auditors will not unreasonably interfere with Company s normal course of business Outsource Manufacturer Sites MS may also inspect any OM s premises Company will grant access to MS with the following limits 1 MS will give Company 14 days prior notice for audits of an OM s premises 2 MS access shall be limited MS may only access areas where COAs and APM are stored and used where the Products are copied stored installed used and distributed and where the OM maintains its records of these activities and 3 Company
27. nce misrepresentation strict liability or product liability and iii Even if any remedies fail of their essential purpose Release Company releases MS Parties from all liability in excess of the limits in this section 5 This release includes any claim for indemnification or contribution even if such claims arise under local law Product Support Company and its Service Representatives are solely responsible for End User support Company shall advise End Users to contact Company for support Company will provide support under terms at least as favorable to the End User as the terms that Company provides support for its other embedded systems At a minimum Company must provide commercially reasonable telephone support Intellectual Property Infringement a b Coverage MS agrees to defend at MS expense Company in a lawsuit or other judicial action and pay the amount of any adverse final judgment or settlement that MS consents to from such lawsuit or judicial action for any third party claims that the Products excluding Sample Code 1 Infringe any copyright or trademark rights 2 Infringe any patents except for patents that are alleged to be infringed by or essential to an implementation of any Standard for which no defense payment or indemnity obligation from MS Parties applies and 3 Misappropriate any Trade Secrets Each of the foregoing are individually referred to in this Agreement as a Claim Scope
28. nd titles of the provisions of this Agreement are for convenience only and do not affect the interpretation of any provision Unless specifically stated the plural shall include the singular Force Majeure Neither party will be liable for failing to perform under this Agreement to the extent that a Force Majeure Event caused the failure The party subject to the Force Majeure Event must give the other party notice within a commercially reasonable time As soon as the Force Majeure Event stops the party must perform the obligations that were not performed In no event shall the damage to destruction or disappearance of COAs on account of a Force Majeure Event relieve Company of its payment obligations MS Affiliate Some provisions in this Agreement include Company s covenants and obligations to MS and MS Affiliates Some provisions are for the benefit of MS and MS Affiliates Company acknowledges and agrees that each MS Affiliate is entitled to its own right to require due performance by Company To the extent necessary to establish an MS Affiliate s rights and benefits MS enters into this Agreement not only in its own right but also as an agent for each MS Affiliate 16 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 Third Party Integrator Schedule 1 This Schedule sets forth the terms under which Company may engage one or more third parties to use the Deliverables only to create
29. o death serious personal injury severe physical or environmental damage High Risk Activities This includes the operation of aircraft or nuclear facilities Company agrees not to use or license the use of the Product in connection with any High Risk Activities Company shall inform its End Users in writing of the restrictions in this section 2 t No Representations for MS Company shall not make any representation or warranty express or implied to End Users or any other third party on behalf of MS Reservation of Rights MS reserves all rights not expressly granted in this Agreement Except as expressly allowed in this Agreement or an OPK Company agrees not to 1 modify or translate the OPK or the Product or 2 distribute sublicense lease rent loan or otherwise transfer the OPK or the Products to any third party 3 Company acknowledges that MS retains all copyright patent moral trademark title and other proprietary and intellectual property in the Product and OPKs Standards Company agrees that under this Agreement MS has not licensed to Company any necessary patent and other intellectual property licenses with respect to the use of any underlying intellectual property applicable to Standards implemented in Company s Embedded Systems Company agrees that Company itself is responsible for obtaining such licenses Sample Code Subject to all terms and conditions of this Agreement MS grants to Company a non exclusi
30. o may be affected by such use Limitations of Liability a c MS Liability MS Parties liability is limited for each Product Except for liabilities to and remedies of Company for MS or any MS Affiliate s unauthorized use of Company intellectual property total cumulative liability if any of MS and MS Affiliates to Company under this Agreement and their exclusive remedy for any such liability shall be limited to Company direct damages incurred in reasonable reliance upon MS up to an amount not to exceed 100 of the amount having actually been paid by Company to MS for that Product under this Agreement This limit includes MS duties arising under section 7 The liability limit in this section 5 a does not apply to any attorneys fees and expenses incurred by MS under section 7 only Exclusion of Certain Damages and Limitations of Types of Liability 1 Company agrees that the MS Parties shall not be liable to Company or to any third party for any of the following i Economic damages i e damages from loss of profits or revenues business interruption and loss of business information or data ii Consequential damages iii Special damages iv Incidental damages v Indirect damages and vi Punitive damages 2 Company agrees that the foregoing limitations apply i Even if MS Parties have been advised of the possibility of such damages ii Even in the event of any MS Parties fault tort including neglige
31. of and operating as a part of the Embedded Application d Updates 1 Distribution i Company may distribute one copy of each Update for each Embedded System that was distributed with the supplemented Product Company must distribute Updates only in the following manner e On external media as described in the Resource Guide either included with or separate from the Embedded System e By download from a Company website subject to section 2 f 8 ii Channel members may distribute one copy of each Update for each Embedded System that was distributed with the supplemented Product The Channel must distribute Updates only on external media provided by Company either included with the Embedded System or separate from Embedded System If the Channel is to distribute Updates separate from Embedded System Company must distribute such Updates only to the members of the Channel that it has a direct business relationship with and track such distribution including the description of the Update and quantity 2 Reproduction Only Company may order Updates from an MS Distributor or reproduce Updates on external media either on Company premises by employees or Contractors The Channel may not do so e Recovery Images 1 Distribution i Company may distribute one copy of the Recovery Image for each Embedded System Company must distribute Recovery Images only in the following manner e On external media as described in the Resource Guide ei
32. orized distribution of same Nondisclosure Company shall keep confidential the Product the terms of this Agreement and any other non public information disclosed to Company by MS Distributor MS or an MS Affiliate Non public information includes for example pricing information MS and MS Affiliate licensing negotiations or terms and conditions and MS and MS Affiliate business policies practices and know how 14 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 10 Assignment Neither party may assign this Agreement in whole or in part by contract merger operation of law or otherwise Any attempted assignment in violation of this section shall have no effect As an exception MS may assign this Agreement to an MS Affiliate as long as the assignment does not unreasonably and materially impair performance under the assigned agreement MS must give Company prior notice of the assignment Failure to give notice will not affect the effectiveness of the assignment 11 Term This Agreement is effective from the Start Date until two years from the end of the calendar month in which MS signs this Agreement 12 Termination a MS Remedies MS may suspend any rights granted to Company under this Agreement require MS Distributors to refuse to fulfill or limit orders from Company and or terminate this Agreement in its entirety or as to any individual Product if Company 1 Materia
33. ovided for each Product The Runtime Key is used during manufacturing of the Embedded Systems Runtime License Envelope means the envelope acquired from an MS Distributor that contains the ATs for the Product A Runtime License Envelope may contain COAs 6 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 Sample Code means the software marked as sample or delivered in a folder marked sample that may be included as a part of the Product Sample Code may be in source code or object code format Sample Code is not covered software under MS published indemnification policy Service Representatives means service technicians employed or contracted by either the End User Company or a member of the Channel to perform maintenance and other service functions on the Embedded Systems Standards means telecom and CODEC standards including any successors or derivatives as well as any rights offered by patent pool licensing agencies such as MPEGLA VIA Licensing and HDMI Licensing Examples include without limitation Global System for Mobile Communications GSM General Packet Radio Services GPRS Code Division Multiple Access CDMA Single Carrier Radio Transmission Technology CDMA 1xRTT MPEG audio and video MS may update this list for Company s reference purposes on the ECE Start Date means the date Comp
34. pany must give MS not less than 48 hours notice prior to changing the designation Notices for those changes should be sent to MOOHelp Microsoft com or ecehelp microsoft com email aliases for MOO and the ECE respectively Password Information means passwords encryption keys or other identifiers used for the Sites security Sites means DOC MOO and the ECE User means an officer employee consultant or other person or agent of Company who has or who creates the appearance of having authority from Company to use the Sites on Company s behalf Terms of Use This section the terms of use in the Resource Guide and the terms posted on the Sites apply to Company s use of the Sites MS may update those terms from time to time Company must i cause its Company Administrators and Users to comply with those terms and ii not cause any harm to the Sites MS may suspend or terminate authorities or suspend or block access to all or any part of the Sites or to any information Whenever possible MS will provide prior notice of such action Company agrees neither MS nor any of its agents shall have any liability for any failure to provide a level of security greater than that generally afforded by the use of Windows Integrated Security and SSL 128 bit encryption in connection with the Sites Company and its Users shall not cause any harm to the Sites No Warranty and Limited Liability MS provides each of the Sites a
35. personnel may escort MS and third parties helping MS MS agrees that the audit will not unreasonably interfere with the OM s normal course of business Audit Costs If the audit reveals a Material Discrepancy Company must pay MS the costs of the audit in addition to any unpaid amounts due Material Discrepancy means either 1 that Company owes MS payment exceeding US 25 000 or 2 an intentional breach of this Agreement Audit Frequency If an audit does not reveal a Material Discrepancy MS will not conduct another audit for at least one year MS will provide Company with a summary of the audit findings Default Charge Company must pay the Default Charge for each unit of Product distributed in violation of this Agreement by Company its Channel or OMs If MS discovers unauthorized distribution by Company or its Channel it will make commercially reasonable efforts to notify Company Failure to give notice will not waive the Default Charge The parties agree that the unauthorized distribution of Product would result in damages to MS that are impractical and difficult to ascertain The parties also agree that the Default Charge is a reasonable and genuine estimate of the loss to MS Payment of the Default Charge shall constitute MS sole and exclusive compensatory remedy in case of unauthorized distribution of Product software recovery media or COAs provided that this does not limit MS ability to seek equitable relief in case of unauth
36. rruption laws including the U S Foreign Corrupt Practices Act and iii Importation manufacturing end user end use and destination restrictions issued by U S and other governments Government Approvals Company must obtain any required local government approvals at their own expense Additional Information Company may require additional information about the Products in order to comply with applicable laws and regulations Upon request MS will provide Company with non confidential Product information that Company reasonably requires if available 16 General a Entire Agreement This Agreement and the ATs constitute the entire agreement between the parties for the Products and the subject matter in those agreements ECE Schedule Company shall comply with the terms and conditions in the ECE Schedule Relationship of the Parties The parties agree that this Agreement will not be construed as creating a partnership joint venture or agency relationship or as granting a franchise Severability If any provision of this Agreement is found illegal invalid or unenforceable by a court of competent jurisdiction the remaining provisions and license for Products as applicable shall remain in full force and effect No Waiver No waiver of any breach of this Agreement will be a waiver of any other breach Any waiver must be in writing and signed by an authorized representative of the waiving party Interpretation The headings a
37. s is The warranty disclaimers damage exclusions and limitations of remedies in this Agreement apply to each of the Sites and to their information functionality services and availability or lack thereof Company will not rely on or treat any information on the Sites as an express warranty MS reserves the right to change or discontinue all or any portion of the ECE at any time Users may make a copy of the ECE information to document Company s transactions or other information MS will retain 2 years of transactional records MS will have no duty to retain or make available the ECE information or records for later access The Sites are not open to the public and the way they functions and all information on them shall be treated as confidential information under section 9 of this Agreement Responsibility for Use of the Sites a All actions taken by any User at or in relation to the Sites will legally bind Company if any of the following are true 1 the User has supplied Password Information 2 Company or Users failed to keep Password Information secure and that failure caused or contributed to creation of an appearance that actions taken on a Site were being taken by or on behalf of Company or 3 Company approved allowed or accepted benefits or use of the Site by a person purporting to be Company s agent b However if a person obtains Password Information by means that could not be prevented by Company s compliance with thes
38. sing services under a suspended Sublicense provided that 1 Any breach of the Sublicense is completely cured and 2 MS confirms in writing that any breach has been cured Performance Guarantee Company guarantees the performance of each Integrator under its Sublicense Such guarantee is unconditional and irrevocable Indemnification Company shall defend indemnify and hold harmless MS and its Suppliers from all damages and liabilities of any kind in connection with a breach of this Schedule or any Sublicense by Company or an Integrator Copies of Sublicenses On MS request Company shall provide a copy of each executed Sublicense to MS If the Sublicense is not in the English language Company shall provide a complete English translation If a Sublicense expires terminates or is modified Company shall promptly notify MS If a Sublicense is modified then Company shall provide MS with a copy of the executed Sublicense and any executed amendments Termination of Main Agreement Survival If this Agreement terminates then Company must terminate all Sublicenses Sections 7 8 and 9 of this Schedule shall survive termination of this Agreement 18 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems 10 11 OEM CLA Version 4 1 Part 2 DOC MOO and ECE Schedule Definitions For purposes of this section Company Administrators means the Users designated by Company on the Notices Schedule Com
39. st be re approved in writing under this Agreement 3 Company has had at least one Microsoft OEM Customer License Agreement for Embedded Systems in place at all times from the time that the applicable Integrator was approved by MS 4 The original Sublicense is still in effect For the purposes of this Schedule original Sublicense means the agreement in place between Company and its Integrator as applicable at the time MS originally approved such Integrator c Company shall notify MS promptly of any changes in the contact information of its Integrators 4 Written Sublicenses Company must enter into a written agreement Sublicense with each Integrator MS provides sample Sublicenses on the ECE MS may change them from time to time The Sublicense must meet these requirements a It must provide that MS is an intended third party beneficiary with rights to enforce the Sublicense b Each Sublicense must require the Integrator 1 To consent to venue and jurisdiction in those jurisdictions specified in this Agreement for resolving disputes between MS and Company 2 To maintain complete records of its activities under the Sublicense These records must be kept on its premises 3 To allow access to its premises by audit or inspection teams sent on behalf of MS or Company Such teams may audit the third party s records or inspect its premises to determine compliance with the Sublicense Access must be provided with or without notice
40. tem for its use 5 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 Enterprise Customer means an End User that a Obtains Embedded Systems either directly from Company or via the Channel for its internal use and b Does not 1 Resell lease or otherwise transfer the Embedded System to non employees contractors 2 Purchase Embedded Systems through retail channels or public web sites or 3 Purchase Embedded Systems solely for personal use by employees Excluded License means any license that requires as a condition of use modification or distribution of software subject to such license that such software or other software combined and or distributed with such software be a disclosed or distributed in source code form b licensed for the purpose of making derivative works or c redistributable at no charge Force Majeure Event means fire disaster caused by forces of nature riot terrorist act war labor dispute material changes in applicable law or regulation or decree of any court Force Majeure Event does not include theft Image means the MS Binaries and the Company Binaries Integrator has the meaning described in the Third Party Integrator Schedule License Terms or EULA means an end user license agreement or terms of use between Company and an End User It must include the terms provided for each Licensed Prod
41. ther included with or separate from the Embedded System e Ona separate partition of the Embedded System hard disk drive 8 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 4 1 Part 2 e Ona separate hard disk drive in the Embedded System The separate drive must be reserved for the Recovery Image The Recovery Image cannot be used unless the Image installed on the main drive fails e By download from a Company website subject to section 2 f 8 ii Channel members may only distribute one copy of the Recovery Image for each Embedded System and only in the following manner As a part of the Embedded System as provided by Company If the Channel is to distribute Recovery Images separate from Embedded System Company must distribute such Recovery Images only to the members of the Channel that it has a direct business relationship with Such members of the Channel may distribute Recovery Images separate from an Embedded System on external media provided by Company as described in the Resource Guide provided that the Channel has requested the Recovery Image from Company on behalf of an End User and track such distribution including the description of the Update and quantity Reproduction Only Company and not the Channel may reproduce Recovery Images on external media either on Company premises by employees or Contractors or order them from an MS Distributor Additional Company So
42. uct posted on the ECE at the following URL https ece partners extranet microsoft com ece Licensing MSSoftwareLicenseTerms te Media Guidelines means the Media Packaging Guidelines posted on the ECE They describe how Company will package and label certain media containing the Product MS reserves the right to modify the Media Guidelines with 90 days notice ee Misappropriate has the same meaning as in the Uniform Trade Secrets Act MOO means the MS OEM Online website located at https www microsoftOEM com or any successor URL 66 MS Affiliate means any entity that directly or indirectly controls is controlled by or is under common control with MS including without limitation MSCORP ce MS Binaries means the redistributable portions of the Product software in object code form that Company includes in an Image MS Distributor means an MS authorized distributor of Products MS may amend the list of MS Distributors posted on the ECE from time to time ee MS Parties means MS Suppliers and or their respective officers employees and agents s MSCORP means Microsoft Corporation a company organized under the laws of the State of Washington U S A Outsource Manufacturer or OM is defined in the Additional Rights Agreement entitled OEM Customer License Agreement for Outsource Manufacturers OPK means the OEM preinstallation kit for a Product that inclu
43. ve limited license to modify and create derivative works of the Sample Code delivered in source code form Sample Code may be distributed as part of an Image Update or Recovery Image or on companion media provided with an Embedded System Nature of Product No Warranties a Notice Regarding Product The Product is complex computer software Performance of the Product will vary depending upon hardware platform software interactions and Product configuration The Product may have software bugs No Warranties The Products are licensed as is Company bears the risk of using the Products MS gives no express warranties guarantees or conditions To the extent permitted under applicable laws MS disclaims all implied warranties including any implied warranties of merchantability fitness for a particular purpose and non infringement Company s Duties Company will a b Determine that each Product is suitable in quality and performance for use in Embedded Systems Provide information to End Users about the proper use of the Embedded Systems including information on how to safely operate the Embedded Systems 11 of 19 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems 5 6 7 C d OEM CLA Version 4 1 Part 2 Ensure the Embedded System meets the relevant standard of care for such devices and Provide appropriate notices or warnings to End Users of Embedded Systems or others wh
44. viders Each Third Party Software Provider shall have the following rights 1 To install Additional Software on the hard disk drive or in non volatile solid state memory of Embedded Systems The Embedded Application must be preinstalled by the OEM before the Embedded System is delivered to the Third Party Software Provider 2 To distribute Embedded Systems on behalf of Company to Company the Channel and End Users 3 The rights in sections 1 and 2 are subject to these conditions i The Third Party Software Provider must distribute the Embedded System with one copy of the applicable License Terms and APM inside the sealed Embedded System package as delivered on behalf of Company to the Third Party Software Provider ii The Third Party Software Provider must abide by the same terms and conditions applicable to Company under this Agreement iii The Additional Software added by the Third Party Software Provider cannot provide the primary functionality of the Embedded System iv All of these terms must remain satisfied at all times No Reverse Engineering Company must not reverse engineer decompile or disassemble the Product or OPK software except and only to the extent applicable law expressly permits the activity Design Restrictions on High Risk Activities The Products are not fault tolerant and are not designed manufactured or intended for any use requiring fail safe performance in which the failure of a Product could lead t
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