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TECHNICAL COLLABORATION AGREEMENT

Collaboration Agreement

TECHNICAL COLLABORATION AGREEMENT | Document Parties: SUN MICROSYSTEMS INC | Microsoft Corporation | Sun Microsystems International B.V. | Sun Microsystems Technology Ltd. You are currently viewing:
This Collaboration Agreement involves

SUN MICROSYSTEMS INC | Microsoft Corporation | Sun Microsystems International B.V. | Sun Microsystems Technology Ltd.

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Title: TECHNICAL COLLABORATION AGREEMENT
Governing Law: Delaware     Date: 9/13/2004
Industry: Computer Hardware     Sector: Technology

TECHNICAL COLLABORATION AGREEMENT, Parties: sun microsystems inc , microsoft corporation , sun microsystems international b.v. , sun microsystems technology ltd.
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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;


 
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