EXHIBIT 10.108
[**] = information redacted pursuant to a
confidential treatment request. Such omitted information has been
filed separately with the Securities and Exchange
Commission.
M ICROSOFT /S UN A LLIANCE
TECHNICAL COLLABORATION
AGREEMENT
This Technical Collaboration Agreement
(the “ Agreement ”) is entered into between
Microsoft Corporation, a Washington corporation, with offices at
One Microsoft Way, Redmond, WA 98052-6399 (“ Microsoft
”), and Sun Microsystems, Inc., a corporation organized and
existing under the laws of the State of Delaware, Sun Microsystems
International B.V. a corporation organized under the laws of The
Netherlands, and Sun Microsystems Technology Ltd., a corporation
organized and existing under the laws of Bermuda (“
Sun ”), effective as of the date it has been signed on
behalf of both Parties (the “ Effective Date ”).
Sun and Microsoft are each sometimes referred to individually as a
“Party , ” and collectively as the
“Parties .”
In consideration of the premises and mutual
covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. C ERTAIN D EFINITIONS
Other capitalized terms used in this Agreement
are defined in Exhibit A or elsewhere in this
Agreement.
“ Licensed Protocols ” means
the Microsoft Licensed Protocols or Sun Licensed Protocols,
individually or collectively as the context may require. Licensed
Protocols will continue to be Licensed Protocols under this
Agreement whether or not they are included in subsequent versions
of the Licensor’s products. Successor versions of Microsoft
Licensed Protocols or Sun Licensed Protocols during the Term will
continue to be included as Licensed Protocols under this Agreement
whether included in the same or different products of Microsoft or
Sun, respectively.
“ Microsoft Licensed Protocols
” means the Communications Protocol(s) implemented in (a) a
Windows Server OS Product that are used to interoperate Natively
with: (i) a Windows Server OS Product running on another computer,
and/or (ii) a Windows Client OS Product running on another computer
during the Delivery Term of this Agreement, and/or (b) Microsoft
Office Outlook 2003 (or successors) that are used to interoperate
Natively with Microsoft . Exchange Server 2003 (or
successors).
“ Sun Licensed Protocols ”
means the Communications Protocol(s) implemented in any Sun Server
OS Product, and are used to interoperate Natively with (i) a Sun
Server OS Product running on another computer, and/ or (ii) a Sun
Client OS Product running on another computer, during the Delivery
Term of this Agreement,
“ Protocol Documentation ”
means the technical documentation for the Microsoft Licensed
Protocols or Sun Licensed Protocols, including updates and
corrections per Sections 3.1(c) , provided under this
Agreement, individually or collectively as the context may
require.
2. L ICENSES
2.1 License Grants . Each Party hereby
grants to the other Party (each, a “ Licensee ”)
the following worldwide, perpetual (subject to termination as
provided in Section 9), non-transferable, non-exclusive, personal
license under the granting Party’s (each, a “
Licensor ”) Licensed Intellectual Property, subject to
all provisions of this Agreement and conditioned on the
Licensee’s compliance with Section 2.3, to:
(i) develop, use, modify, copy,
create derivative works of and make Authorized Implementations in
accordance with the Licensor’s Protocol
Documentation;
(ii) Distribute Authorized
Implementations in object code form as follows:
(A) to End Users, directly or
indirectly through Channel Entities, including through multiple
tiers under a EULA consistent with the scope and terms of this
Agreement.,
(B) to Channel Entities, directly or
indirectly through other Channel Entities, for Distribution to End
Users per 2.1(ii)(A), and under a Channel Agreement consistent with
the scope and terms of this Agreement. , and
(C) for Internal Deployment;
and
(iii) Distribute copies of, and
grant an Authorized OEM Sublicense to, the source code of
Authorized Implementations to Authorized Entities, as follows:
Licensee may disclose the source code of any Authorized
Implementation to Authorized Entities only as part of a disclosure
to such Authorized Entities by such Licensee of all or a
substantial majority the source code of the applicable product
implementing the Authorized Implementation, (and, if such product
operates in conjunction with another Licensee product and does not
include substantial functionality other than the implementation of
Licensed Protocols, a substantial majority of the source code of
such other Licensee product), and only under the terms of a written
agreement including an obligation of confidentiality with such
Authorized Entity that (A) is no less protective of
Licensee’s rights in such disclosed Authorized Implementation
than in any other source code that Licensee discloses
only
under obligations of confidentiality, and that
complies with the provisions of Section 6.5(c) , (B) does
not grant any broader rights with respect to the Authorized
Implementation than with respect to the other parts of the
applicable Authorized Implementation, and (C) does not permit such
Authorized Entity to distribute or, except as provided in
Section 6.5(c) , disclose or sublicense such source
code.
2.2 License Clarifications . The licenses
granted by Licensor in this Agreement do not include (i) except as
provided in Sections 3.1 and 6, any right to modify, reproduce or
Distribute the Protocol Documentation. The licenses granted by
Licensor in this Agreement do not include any right to extend or
change any of the packet types or content types described in the
Protocol Documentation or (ii) any use of the Licensed Protocol
Documentation or the Licensed Intellectual Property to implement
the Licensed Protocols in any software other than an Authorized
Implementation. Information contained in or derived from the
Protocol Documentation may not be Distributed in any manner other
than as part of an Authorized Implementation.
2.3 Condition . The licenses granted in
Section 2.1 do not include any license, right, power or
authority to, and Licensee will not, subject Authorized
Implementations in whole or in part to any of the terms of any
license that requires terms or conditions that are contrary to the
scope of this Agreement or Licensee’s obligations under this
Agreement. For example, the licenses granted in Section 2.1
do not include any license, right, power or authority to subject
Authorized Implementations or derivative works thereof in whole or
in part to any of the terms of any other license that requires such
Authorized Implementations or derivative works thereof to be
disclosed or distributed in source code form. Subject to the
foregoing, and as long as the Authorized Implementation(s) are
developed and Distributed in a manner that complies with this
Agreement, nothing in this Agreement prevents Licensee from
developing and/or Distributing Authorized Implementation(s) for use
on any Server Software platform or operating system.
2.4 Reservation of Rights . All rights
not expressly granted in this Agreement are reserved by Licensor.
No additional rights are granted by implication or estoppel or
otherwise. Licensee will not exercise any rights to the Licensed
Protocol Documentation or Licensed Protocols or under the Licensed
Intellectual Property outside the scope of the express license in
Section 2.1 .
2.5 Compatibility . A Licensee will not
implement extensions or modifications to the Licensed Protocols of
a Licensor in such a way as to break compatibility with the Server
Software of the Licensee.
3. T ECHNICAL C OLLABORATION
3.1 Documentation .
(a) Delivery . Each Party
will make Protocol Documentation of its Licensed Protocols
available to the other Party as provided by this Section 3.1
within a reasonable period from the Effective Date and via a
reasonable method, as determined by the Disclosing Party from time
to time in its discretion. Delivery of Protocol Documentation, by
way of example, via “smart card” access or documents
protected by digital rights management mechanisms to employees of
the other Party will constitute a reasonable method of
delivery.
(b) Format . Protocol
Documentation will contain sufficient information for reasonably
skilled software engineers with sufficient resources and time to be
able to implement the Licensed Protocols described therein in
Server Software. Neither Party will be required (but has the
option, with the agreement of the other Party) to provide as part
or all of its obligation to make available Protocol Documentation
under this Agreement (1) any files or other data that may be
communicated using a Licensed Protocol, except to the extent such
files or data are required to make effective use of the Protocol
Documentation in creating Server Software, or themselves constitute
a Communications Protocol used by the Authorized Implementation, or
(2) source code of any of a Party’s products or other
implementations of its Licensed Protocols.
(c) General Schedule for
Documentation Availability . Each Party may request Protocol
Documentation for particular Licensed Protocols. Such requests will
be made in writing through the Program Management Contacts and will
provide a reasonable description of the Protocol and any Protocol
Documentation sought. Each Disclosing Party will use commercially
reasonable good faith efforts to provide the other Party with any
requested Protocol Documentation that such Disclosing Party has
created and possesses as of the date of a request from the other
Party, within 30 days of such request. If the requesting Party
requests Protocol Documentation that has not been created or
possessed by the Disclosing Party as of the date of the other
Party’s request, the Disclosing Party will make commercially
reasonable good faith efforts to provide such Protocol
Documentation to the other Party within a reasonable time within
three months of such request.
(d) Limitations . Nothing in
this Agreement requires either Party to continue to implement any
Licensed Protocol in any future product.
3.2 Support .
(a) Engineering Support .
Each Party will appoint a Technical Account Manager to provide
reasonable technical assistance and support regarding
Licensor’s Protocol Documentation and the Licensor’s
products. On reasonable request, Licensor will make the Technical
Account Manager available on-site at Licensee’s facilities in
the U.S. The assistance to be
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provided by Licensor’s Technical Account
Manager may include guidance to other available information
relating to Licensed Protocols and Licensor’s products;
information from or limited portions of the source code for
Licensor’s products for purposes of debugging and verifying
the actual operation of Licensed Protocols; etc. Any disagreement
between the Parties regarding the scope of assistance provided or
to be provided by the other Party’s Technical Account Manager
will be resolved in accordance with the governance rules set forth
in Section 4. Any such additional information and assistance
concerning the behavior, meaning or interdependencies of a
Licensor’s products, protocol implementations or source code
shall be provided for reference only and the Licensee does not
obtain any license rights as a result of the disclosure under this
provision.
(b) Documentation Support .
If, during the Term and after consultation with the other
Party’s Technical Account Manager, (a) the Receiving Party
has requested from the Disclosing Party Protocol Documentation for
Licensed Protocols of the Disclosing Party involved in particular
Server Products, but believes the Disclosing Party has not provided
the Protocol Documentation for each of those Licensed Protocols, or
(b) the Receiving Party has requested Protocol Documentation for a
particular Licensed Protocol of the Disclosing Party, but believes
the Protocol Documentation provided by the Disclosing Party for
that Licensed Protocol is inaccurate or incomplete, in each
instance it will notify the Disclosing Party in writing, including
a reasonably detailed identification of the purported omission or
inaccuracy and the nature of the correction the Receiving Party
believes is needed. The Disclosing Party will, within 15 days of
its receipt of such notice, advise the Receiving Party in writing
whether or not it agrees that the relevant Protocol Documentation
has not been provided, or that it is inaccurate or incomplete (as
the case may be). If the Disclosing Party agrees, its written
notice will state (i) its plans to address the omission or
inaccuracy, including whether such documentation already exists or
needs to be created or acquired and the expected timeframe for
delivery of the Protocol Documentation in question. If the
Disclosing Party does not agree that the relevant Protocol
Documentation has not been provided, or that it is inaccurate or
incomplete (as the case may be), or if the information provided by
the Receiving Party is insufficient for the Disclosing Party to
make such determination, the matter will be escalated (i) to the
Program Management Contacts of each Party, and if not resolved by
them within 30 days, the matter will be resolved in accordance with
the governance rules set forth in Section 4 .
3.3 SQL Technical Information . On
request by Sun as described in section 3.1, Microsoft will provide
to Sun, for the sole purpose of interoperating with
Microsoft’s SQL Server products, documentation of any APIs or
Communications Protocols implemented in Microsoft’s SQL
Server 2000 (or successor versions) and, during the Delivery Term,
are (i) used by any other Microsoft product to interoperate with
Microsoft’s SQL Server products or (ii) made available to
other ISVs for use in interoperating with Microsoft’s SQL
Server products. For purposes of Sections 3, 4, 6, 7, 8 and 9 only,
documentation provided under this paragraph shall be considered as
Protocol Documentation.
3.4 Comments and Suggestions. Each Party
invites comments and suggestions from the other Party on the
Protocol Documentation and other items or information provided by
such Party under this Agreement (“ Comments and
Suggestions ”). If the Receiving Party voluntarily
provides (in connection with correction assistance or otherwise)
any comments or suggestions relating to the Disclosing
Party’s Protocol Documentation or matters contained therein,
the Disclosing Party may, in reference to its respective products
and services, use, disclose or otherwise commercialize in any
manner, any of those comments and suggestions without obligation or
restriction based on intellectual property rights or
otherwise.
3.5 Each Party will provide access to the other
to any other licensing programs related to interoperability with
the Party’s products and/or technology on the same terms and
conditions as any other participants in such programs. In addition,
the Parties will provide each other the opportunity to participate
in early design preview, code release and similar programs relating
to interoperability with each others products and/or technology, on
the same terms and conditions as other participants in such
programs.
4. G OVERNANCE
4.1 Senior Stakeholder Meetings and Program
Management .
(a) Executive Sponsors .
Within 15 days of the Effective Date, each Party will appoint one
(1) person with the title of Vice President or higher as the
executive sponsor responsible for overall technical cooperation
with the other Party (each an “ Executive Sponsor
”) and will provide the contact information for that
Executive Sponsor to the other Party. Each Party will have the
right to replace its Executive Sponsor (provided the replacement is
a person with the title of Vice President or higher) by providing
written notice of such replacement to the other Party, such notice
to include the contact information for the new Executive Sponsor.
Unless agreed otherwise between the Executive Sponsors, the
Executive Sponsors will meet at least quarterly (whether in person
or via telephonic conference) to discuss and resolve any issues
arising between the Parties and, to discuss the Parties’
technical cooperation and exchange of relevant information pursuant
to this Agreement.
(b) Program Management
Contacts . Within 30 days of the Effective Date, each Executive
Sponsor will appoint one person to manage the relationship and
activities contemplated by this Agreement for that Party (each a
“ Program Management Contact ”) and will provide
the contact information for that Program Management Contact to the
other Executive Sponsor. Each Party will have the right to replace
its Program Management Contact by providing written notice of such
replacement to the other Party’s Executive Sponsor, such
notice to include the contact information for the new Program
Management Contact. Each Party’s Program Management Contact
will be responsible for managing that Party’s operational
obligations regarding deliverables under this Agreement and will be
the day to day contact for the identification and
resolution
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of issues between the Parties. The Program
Management Contacts, will meet in person or via telephonic
conference, as needed and, no less than once each month during the
term of this Agreement, to discuss the status of operational
activities under this Agreement.
(c) Executive Council . In
addition to the respective Executive Sponsors, each Party will
appoint up to three (3) additional senior executives to sit on an
“ Executive Council ” which will meet together
with the Executive Sponsors not less frequently than twice annually
(whether in person or via telephonic conference), with the goal of
maintaining and developing the working relationship between the
Parties and to resolve any outstanding issues between the Parties.
Each Party will have the right to change any or all of its
Executive Council members upon written notice to the other
Party.
(d) CEO and Executive Council
Review . At least once annually there will be a meeting in
person of the Executive Council members with the Chief Executive
Officers of Sun and Microsoft. The purpose of this meeting will be
to discuss overall adherence to this Agreement, address and help
resolve any issues that may arise, discuss the Parties’
cooperation pursuant to this Agreement, and to exchange information
considered relevant to the Parties’ other ongoing and
potential areas of cooperation.
4.2 Resolution of Disputes, Disagreements, or
Claims .
(a) Executive Discussion .
The Parties will attempt to settle any dispute between them related
to this Agreement in an amicable and expeditious manner. To this
end, before either Party may invoke the arbitration procedure
described in Section 4.2(b) , the Parties must first attempt
in good faith to settle the dispute as follows:
(i) If the Parties’ Program
Management Contacts are unable to resolve a dispute related to this
Agreement after good faith attempts to do so, either Party’s
Program Management Contact may escalate such dispute by sending
written notice (with notice via email being acceptable) to the
Parties’ Executive Sponsors;
(ii) The Executive Sponsor of the
Party contemplating arbitration must first provide a written
description of the nature of the dispute, disagreement or claim in
writing and provide this to the Executive Sponsor of the other
Party. If the Executive Sponsors are unable to resolve the dispute
within ten (10) days of receiving the written description above,
either Executive Sponsor may immediately escalate the dispute to
the members of the Executive Council by sending written notice
(with notice via email being acceptable), including the written
description of the nature of the dispute prepared by the Executive
Sponsor as provided above. If the Executive Council members are
unable to resolve the dispute within fifteen (15) business days of
receiving the escalation notice, each Party’s Executive
Council members will immediately escalate to the Parties’
respective Chief Executive Officers. The Chief Executive Officers
of the Parties must then meet and confer in person to explore
whether it is possible to resolve the dispute, disagreement, or
claim without resort to arbitration. If this meeting fails to reach
an agreement, the Parties must wait for a minimum of sixty (60)
days and then have a final meeting of the Chief Executive Officers
to attempt to reach an agreement; and
(iii) If this second meeting of
Chief Executive Officers fails to reach agreement, then either
Party may initiate an arbitration proceeding, provided that the
Party initiating the arbitration must confine the basis for the
claim to issues that were identified in the written document
previously provided by the Executive Sponsor or otherwise provided
in writing to the two Chief Executive Officers in advance of the
first meeting between the two of them to seek to resolve these
issues.
(b) Arbitration . Any
dispute, disagreement or claim arising out of or relating in any
way to this Agreement or the Parties’ obligations under this
Agreement, including the breach, termination or validity thereof,
which has not been resolved by the procedures set forth in Section
4.2(a) shall be resolved exclusively by binding confidential
arbitration conducted in New York City in accordance with the CPR
Rules for Non-Administered Arbitration in effect on the date of
this Agreement, as well as the Federal Rules of Civil Procedure and
Evidence, before a retired Federal judge agreed upon by the parties
and if no agreement can be reached then as designated by the Chief
Judge of the United States District Court for the Southern District
of New York from among no more than two candidates proposed by each
party; provided, however, that if one Party fails to participate in
the procedures set forth in Section 4.2(a), the other Party can
commence arbitration prior to the expiration of the time periods
set forth in such Section 4.2(a). The parties shall keep
confidential to the extent permitted by law the arbitration and its
outcome.
(c) General. Except as specifically
provided in Section 10.4, the procedures specified in Sections
4.2(a) and (b) will be the sole and exclusive procedures for the
resolution of disputes, disagreements or claims between the Parties
arising out of or relating to this Agreement; provided, however,
that if any such dispute, disagreement or claim has not been
resolved by the procedures set forth in Section 4.2(a), a Party may
file a complaint to seek a preliminary injunction or other
provisional judicial relief for the sole purpose of protecting its
intellectual property rights, if in its sole judgment such action
is necessary. In addition, if one Party fails to participate in the
procedures set forth in Section 4.2(a), the other Party can
commence such action prior to the expiration of the time periods
set forth in such Section 4.2(a). The requirements of this Section
4.2 will not be deemed a waiver of any right of termination under
this Agreement or to supersede or limit any rights set forth in
Section 10.4.
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5. R OYALTIES ; R ECORDKEEPING AND A UDITS
5.1 Royalties, Reporting, Payments, and
Taxes .
(a) Royalties and payment terms for
a Party’s Authorized Implementations will be set by the other
Party at commercially reasonable terms and rates. Royalties for Sun
products that include only implementations licensed under MCPP will
be determined under Sun’s MCPP development and distribution
agreement with Microsoft. To the extent that a Party offers
protocol technologies under any other licensing program, now or in
the future, royalties under this Agreement for the same usage will
be the most favorable pricing available under such other licensing
program.
(b) With Respect to each Party,
individually, Royalties that accrue under this Agreement shall not
exceed US$ 1,000,000,000 (“Royalty Cap”) in the
aggregate. Notwithstanding the foregoing, such Royalty Cap as to
each party shall apply only to:
(i) Authorized Implementations that
are:
(A) A component of Server Software
that provides significant services in addition to protocol based
services/communications, and,
(B) Licensed alone or in conjunction
with other products (including, but not limited to, hardware or
software) or services,for a commercially reasonable fee that
represents the fair value of the products and services
provided.
and;
(ii) Royalties that accrue under an
MCPP agreement.
For purposes of clarification, and without
limitation, this Royalty Cap is personal to the Parties and
notwithstanding any consent by the other Party per Section 10.7,
any assignment or transfer, in whole or in part, of this Agreement
shall exclude the Royalty Cap, and the assignor and any assignee or
transferee shall be liable for all royalties accrued in any event
under this Agreement and an MCPP Agreement, if
applicable.
5.1(c) Recordkeeping and Audits For as
long as a Party Distributes the other Party’s Authorized
Implementations and for two (2) years after the later of (a)
expiration or termination of the Term; or (b) the last calendar
quarter in which a Party Distributes the other Party’s
Authorized Implementations, such Party will maintain accurate and
adequate books and records related to its compliance with this
Agreement (collectively, “ Audit Information ”).
Upon at least fourteen (14) days’ written notice, the
Disclosing Party will provide access to Audit Information to a
nationally recognized independent certified public accountant
(“ Auditor ”) selected by the Receiving Party
and approved by the Disclosing Party (such approval not to be
unreasonably delayed or withheld); provided that (i) such access
will be limited to those portions of the Audit Information
necessary to verify the Disclosing Party’s compliance with
this Agreement and (ii) the Auditor agrees to use reasonable and
customary care to protect the confidentiality of Audit Information
and not to unreasonably interfere with the Disclosing Party’s
normal course of business. Audits will not be performed more than
once every twelve (12) months, unless an audit discloses a Material
Discrepancy, in which case audits may be conducted more often,
until such time as an audit does not disclose a Material
Discrepancy. The Disclosing Party will promptly pay the costs of
any audit(s) that reveal a Material Discrepancy;