OEM CLA Version 5.0
OEM CLA Version 5.0 Company Legal Name: Doing Business As (dba) MS Agreement Number: Start Date: End Date: Mobile and Embedded Communications Extranet URL: <<TAG: COMPANYNAME>> <<TAG: AgrNum>> <<TAG: Agr Eff Date>> <<TAG: EndDate>> https://ece.partners.extranet.microsoft.com/ece/ MICROSOFT OEM CUSTOMER LICENSE AGREEMENT FOR EMBEDDED SYSTEMS (Version 5.0) <<TAG: OperatingCenterName>> (“MS”) and <<TAG: CompanyName>> (“Company”) agree to be bound by this Microsoft OEM Customer License Agreement For Embedded Systems (“Agreement”). It takes effect as of the Start Date above. This Agreement consists of This Signature Page Notices and Contact Schedule Core Terms Integrator and Outsource Manufacturer Schedule Use of Third Party Brand Names and Trademarks Schedule Field Upgrade Schedule Migration Rights Schedule Downgrade Rights Schedule ECE Schedule By signing below, MS and Company agree to be bound by the terms of this Agreement. 1 <<TAG: CompanyName>> A general partnership organized under the laws of: State of Nevada, U.S.A. A company organized under the laws of: <<TAG: Incorp>> MICROSOFT LICENSING, GP MICROSOFT IRELAND OPERATIONS LIMITED A company organized under the laws of: Ireland MSOPSSignerSignHere OEMSigner1SignHere By: By: (signature) 1 OEMSigner2SignHere (signature) Name: MSOPSSignerFullName (printed) Name: OEMSigner1FullName (printed) OEMSigner2FullName Title: MSOPSSignerTitle (printed) Title: OEMSigner1Title (printed) OEMSigner2Title Date: MSOPSSignerDateSigned Date: OEMSigner1DateSigned OEMSigner2DateSigned If Ops Center is MSLI, then insert blue highlighted text; if Ops Center is MIOL, then insert green highlighted text. 1 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 Notices & Contact Schedule Any written notices related to this Agreement must be in the English language and addressed to each of the contacts and locations listed below. Each party may change the contact or address below by providing notice. MS Information Company shall send notices to: Microsoft Licensing, GP 6100 Neil Road Reno, NV 89511-1132 U.S.A. Attention: OEM Contracts Phone Number: (1) 775-823-5600 Fax Number: (1) 425-936-7329 Email: [email protected] Microsoft Ireland Operations Limited European Operations Centre The Atrium Building, Block B Carmanhall Road Sandyford Industrial Estate Dublin 18 IRELAND Attention: OEM Contracts Phone Number: 353-1-295-3826 Fax Number: 353-1-7064110 Email: [email protected] 2 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 Company Information Primary Notices Contact Company Ship To Information for Deliverables, Updates, and Replacements (including Primary Ship To Contact/Address) [Company Name] [Address] [City and State/Province] [Country] [Postal Code] [Name] [Address] [City and State/Province] [Country] [Postal Code] [Contact Name] Job Title: Phone Number: Phone Number: Email: Fax Number: Email: 3 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 Additional Notices Contacts (Notices from MS will be sent to all contacts listed below.) Contact Name Address City State/Province Country Postal Code Email Address Phone Number Fax Number Phone Number Fax Number Additional Ship To Contacts/Addresses Contact Name Address City State/Province Country Postal Code Email Address Name of MS Distributor facilitating execution of this Agreement for Company: Country of MS Distributor: 4 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 Core 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 Software” means software that is added to the Embedded System (after installation of the Image) and that supports the functions of the Embedded System. “APM” means associated product materials MS designates from time to time as a part of a Product. Examples of APM include documentation, external media containing software and other tangible materials related to the Product. APM does not include COAs. “Certificate of Authenticity” or “COA” means a non-removable sticker designated by MS as specific to a 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 includes Embedded Applications. “Contractors” mean an individual or entity, engaged to perform services under a contract on behalf of Company that (a) has appropriate non-disclosure obligations and other contract terms in place with Company sufficient to satisfy Company's obligations under this Agreement and ATs, and (b) performs all services on Company’s sites. Company is liable for all acts and omissions of their Contractors. “Default Charge” means an amount owed as liquidated damages for the unauthorized distribution of Product software, recovery media, or COAs. “Deliverables” means, for a Product, the OPK, (including tools and utilities), APM, COAs, and other items identified by MS as Deliverables. Deliverables are used for reproducing, configuring, and 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 word processing, spreadsheets, database, 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 and Embedded Communications Extranet, website 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 function with all of the following attributes: (a) it provides the primary functionality of the Embedded System, (b) it is designed to meet the functionality requirements of the specific industry into which the Embedded System is marketed and distributed, and. (c) it offers functionality in addition to the Product software. “Embedded System” means a computing device that is designed for and on which an Embedded Application is installed as part of the Image. “End User” means a person, company or other legal entity that acquires an Embedded System for its use. “Enterprise Customer” means a non-consumer End User that: (a) obtains Embedded Systems only directly from Company or via the Channel for its internal use; (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. (c) represents one of the industries listed on the ECE under “Enterprise Customer Industry List” for which the Embedded System is designed and marketed. 5 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 “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” means a third party Company engages to use the Deliverables only to create and test an Image or related software for an Embedded System. “License Terms” or “EULA” means an end user license agreement or terms of use between Company and an End User. MS end user license terms for Products are posted on the ECE at the following URL: https://ece.partners.extranet.microsoft.com/ece/Licensing/MSSoftwareLicenseTerms/. “Material Amount” means US$25,000. “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. “MS Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with MS, including MSCORP. “MS Binaries” means the redistributable portions of the Product software, in object code form, that Company includes in an Image. “MSCORP” means Microsoft Corporation, a company organized under the laws of the State of Washington, U.S.A. “MIOL” means Microsoft Ireland Operations Limited, a company organized under the laws of Ireland. MIOL is an indirect, wholly owned subsidiary of MSCORP. “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. “MSLI” means Microsoft Licensing, GP, a general partnership organized under the laws of the State of Nevada, U.S.A., of which MSCORP is a general partner. “MS Parties” means MS, Suppliers, and/or their respective officers, employees, and agents. “OPK” means the OEM preinstallation kit for installing Product software on the Embedded System. The OPK includes, where applicable, Product software and Supplements, installation instructions, and utilities. “Outsource Manufacturer” or “OM” means a third party or entity owned by Company that Company engages to manufacture an Embedded System, install an Image on an Embedded System, prepare the Embedded System for distribution, and distribute Embedded Systems as provided in the Integrator and Outsource Manufacturer Schedule of this Agreement. “Products” means the Microsoft products identified as licensed under this Agreement (including the applicable ATs). Product includes MS Binaries, other software (including Supplements), COAs, APM, and, where applicable, Sample Code. With the exception of some Sample Code, MS does not provide Product in source code form. “Product Keys” means a key, if any, used to install a Product. 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 they install the Product onto the Embedded System during testing and development. “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 used to identify the Product. Runtime Keys are provided for each Product, as applicable. 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 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 “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 the End User, Company, or a member of the Channel to perform maintenance and other service functions on the Embedded Systems. “Standards” means (a) telecommunications standards; (b) CODEC standards; (c) proximity communications over an NFC link as defined by the NFC Forum published specifications and any normative references contained therein; (d) standards related to enabling secure element management and operation on a device, between devices, and between a device and an internet service; (e) any related successors or derivatives to (a) – (d); and (f) any rights offered by patent pool licensing agencies such as MPEGLA, VIA Licensing and HDMI Licensing. For clarification, “normative reference,” as used in this definition, means an expression in the content of a specification or reference conveying criteria to be fulfilled if compliance with the specification or reference is to be claimed and from which no deviation is permitted. Examples of Standards include: - Global System for Mobile (Communications) (GSM) - General Packet Radio Services (GPRS) - Code Division Multiple Access (CDMA) - Single Carrier Radio Transmission Technology (CDMA/1xRTT) - Long Term Evolution (LTE) - MPEG (audio and video) - NFC and NFC Forum - RFID - Global Platform - EMVCo - Single-Wire Protocol - Host-Controller Interface Protocol MS may update this list of examples, for Company’s reference purposes on the ECE. “Supplement” or “Supplemental Code” means a supplement to, replacement of, or re-release of any part of a Product or OPK that MS provides to Company “Suppliers” means MSCORP, MSLI, and other licensors or suppliers of Product or portions of a Product. “Support Software” means systems utilities, resource management software, 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 an 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. 7 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 An Update Image may include the previously distributed version of the MS Binaries or the Company Binaries, but not both. 2. License Grants Limitations (a) Grant. MS grants to Company the 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 solidstate 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(j) (COA and APM); 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. (1) If the Embedded System performs Desktop Functions, Company shall design the Embedded System to ensure that the Desktop Functions meet the following requirements. (i) Desktop Functions must be an integral part of the Embedded Application; (ii) Desktop Functions must only be accessed through, and used in support of the Embedded Application; and (iii) Desktop Functions operate only when used with the Embedded Application. (2) Company may not distribute a Product installed on an Embedded System with a 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 of this Agreement and ATs. (4) (i) 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. (ii) 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, Company must install or provide Embedded Application to Enterprise Customers except as provided in Section 2 (d) (Enterprise Customers Additional Rights) below. (c) Additional Software and Support Software for Embedded Systems (1) Installation and Use Instructions. Company must provide clear installation and use instructions for any Additional Software and Support Software that Company distributes. (2) Installation by End Users. Company may allow End Users to install Additional Software and/or Support Software. Company must distribute such Additional Software. Company may provide Support Software. 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, 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. (3) Installation by Enterprise Customers and System Integrators. Company may allow its Enterprise Customers and their System Integrators (as described in Section 2(d)(iv) below) to install Additional Software and Support Software. Company may provide any such Additional Software or Support Software to an Enterprise Customer or System Integrator. Alternatively, an Enterprise Customer may obtain Additional Software from a third party. To the extent permitted under applicable law, Company shall contractually prohibit Enterprise Customers from accessing and using Desktop Functions other than through, in support of, and operating as a part of, the Embedded Application. 8 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (d) Enterprise Customers’ Additional Rights. Notwithstanding anything to the contrary in Section 2 (License Grant Limitations), for distributions to Enterprise Customers only MS grants to Company the following non-exclusive rights. These rights are subject to all of the terms in this Section 2(d) remaining satisfied at all times. (1) Company may opt not to preinstall a Product or an Image on the Embedded System, in that case, Company must either (i) distribute Embedded Systems to an Enterprise Customer and install the Image created by Company on Enterprise Customer premises, or (ii) distribute Embedded Systems, with the applicable COA permanently affixed to it, to Enterprise Customer and have Enterprise Customer create and install the Product or Image, or only install the Product or Image, on behalf of Company. In the rights granted above, an Embedded System includes either one copy of the Product preinstalled on the Embedded System, or one copy of the Product on external media in the Embedded System package. An Embedded System may also include either one copy of the Company Binaries preinstalled on the Embedded System or one copy of the Company Binaries on external media in the Embedded System package. (iii) Notice to MS. At least 30 days before Company intends to have an Enterprise Customer perform an installation on behalf of Company, Company must provide MS with a notice that includes the name, address and contact information of that Enterprise Customer. All information must be in English. Company must receive MS’ written approval of Enterprise Customer, prior to allowing it to begin work under this Section 2(d). MS written approval is not required if Enterprise Customer was approved by MS in writing under a prior Microsoft OEM Customer License Agreement for Embedded Systems (“CLA”) between MS and Company, MS has not notified Company that Enterprise Customer must be re-approved under this Agreement, and the original Key Usage Agreement is still in effect. For the purposes of this Section 2 (d), original Key Usage Agreement means the agreement in place between a Company and Enterprise Customer (as set forth in Section 2(d)(2)(v) below) at the time MS originally approved such Enterprise Customer (“Key Usage Agreement”). (iv) Enterprise Customer Installation. For installation by Enterprise Customer Company provides to Enterprise Customer: (1) the Runtime Key or Product Key (“Key”) designated by MS for an Enterprise Customer’s use. (2) one copy of the MS Binaries and Company Binaries, if any, only to be used by Enterprise Customer to create and/or install an Image on the Embedded System on behalf of Company to create a Recovery Image on a separate partition of the Embedded System hard disk drive or on a separate hard disk drive in the Embedded System. The separate drive must be reserved for Recovery Image. The Recovery Image cannot be used unless the Image installed on the main drive fails. The Recovery Image must be created only on Enterprise Customer premises by Enterprise Customer employees or Contractors. (3) the Key Usage Agreement as described in Section 2(d)(2)(v) below. (v) Key Usage Agreement Prior to providing the Key, Product, and/or Company Binaries to Enterprise Customer, Company must enter into a Key Usage Agreement with Enterprise Customer. The Key Usage Agreement shall expressly provide that (1) MS is an intended third party beneficiary of the Key Usage Agreement with rights to enforce such agreement, including suspension or termination of the Enterprise Customer’s rights to use the Key. (2) MS may either require Company to suspend or terminate Enterprise Customer’s rights to use the Key or notify Company prior to MS suspending or terminating Enterprise Customer’s rights to use the Key. (3) Company must provide a copy of the Key Usage Agreement to MS upon request. (4) The Key Usage Agreement must require Enterprise Customer to: (A) use the Key only to create an Image for installation on new Embedded Systems manufactured by Company, or to use the Key only to maintain or re-install an Image on Embedded Systems that have been previously distributed to Enterprise Customer by Company; (B) use the Key only on Enterprise Customer premises by Enterprise Customer employees or contractors unless Company permits Enterprise Customer to use a System Integrator as specified in Section 2(d)(iv) below; and 9 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (C) engage in commercially reasonable efforts to protect against unauthorized or inappropriate use of the Key. (5) Confidentiality. Keep confidential the Key, the terms of the Key Usage Agreement, and any other non-public information disclosed to Enterprise Customer by MS Parties or Company related to the Product and the rights granted under this Section 2(d). These confidentiality obligations continue after expiration or termination of the Key Usage Agreement, or notice to Enterprise Customer to suspend use of the Key. (6) No Assignment. The Key Usage Agreement is non-assignable in whole or in part. (7) Governing Law. With respect to any action brought by MS to enforce its rights under the Key Usage Agreement Section 16 (Choice of Law; Jurisdiction and Venue; Attorney’s Fees) of this Agreement shall apply. (8) Audit (A) Records Audit. MS and/or Company may cause an audit of Enterprise Customer’s records related to Enterprise Customer’s performance under the Key Usage Agreement to be conducted. Those records include complete financial statements and all documents related to acquisition, reproduction, installation, distribution, and other disposition of each unit of Product, including COAs, APM, and the number of images of Product installed using the Key. The audit will be performed during regular business hours by an independent (as to MS, Company, and Enterprise Customer) and internationally recognized certified public accountants selected by MS and/or Company (other than on a contingent fee basis). (1) MS and/or Company will provide written notice to Enterprise Customer at least 30 days before such audit. (2) Enterprise Customer will keep these records in accordance with Enterprise Customer’s standard record retention policies for at least 2 years after the term of the Key Usage Agreement. (3) Enterprise Customer can keep these records at different locations. If MS and/or Company ask for these records, Enterprise Customer will make reasonable efforts to make them available at a single location. This includes copies of corresponding Enterprise Customer’s records and books of account. (4) Enterprise Customer will provide MS and/or Company with reasonable access to these records. (B) Premises Audit. To verify compliance with the terms of the Key Usage Agreement, MS, Company, and/or their auditors may also inspect Enterprise Customer’s premises. Enterprise Customer will grant access to MS, Company and/or their auditors as follows: (1) MS and/or Company will give Enterprise Customer 14 days' notice prior to inspection of the Enterprise Customer’s premises, except that MS, Company, or their auditors may enter Enterprise Customer’s premises without notice to detect counterfeiting and anti-piracy compliance. (2) MS, Company, or their auditors’ access may be limited to areas where Enterprise Customer is performing under the terms of the Key Usage Agreement, including where the Key and Images of Product are stored, used, installed, and distributed, and where Enterprise Customer maintains its records. (C) Audit Costs. Enterprise Customer will bear the cost for an audit if the audit reveals that (1) Enterprise Customer has intentionally breached the Key Usage Agreement, or (2) the amount owed exceeds a Material Amount. (9) Suspension. Enterprise Customer will suspend all activities under the Key Usage Agreement upon notice from Company or MS. MS will notify Company prior to requiring Enterprise Customer to suspend its activities. (10) Attorney’s Fees. Enterprise Customer shall pay MS or Company attorneys’ fees if Company or MS employs attorneys to enforce any rights arising out of the Key Usage Agreement. (iv) System Integrator. Company may allow an Enterprise Customer to engage one or more third parties to exercise Enterprise Customer’s rights under this Section 2(d) on behalf of Company (“System Integrator”), provided that: (1) At least 30 days before Enterprise Customer intends to engage a System Integrator, Company, or Enterprise Customer must provide MS with a notice that includes the name, address and contact information of that third party. All information must be in English. (2) Company or Enterprise Customer must receive MS’ written approval of System Integrator, prior to allowing it to begin work under this Section 2(d). (3) MS written approval is not required if (A) the System Integrator was approved by MS in writing under a prior CLA between MS and Company, such System Integrator Agreement is still in effect, and (B) MS has not notified Company that such third party must be re-approved under this Agreement. 10 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 For the purposes of this Section 2 (d), original System Integrator Agreement means the agreement in place between an Enterprise Customer and System Integrator (as set forth in (2) below) at the time MS originally approved such System Integrator. (4) Enterprise Customer must enter into a separate written agreement with System Integrator (“System Integrator Agreement”) that expressly provides (A) MS is an intended third party beneficiary of the System Integrator Agreement with rights to enforce such agreement, including suspension or termination of System Integrator’s rights. (B) MS may either suspend or terminate System Integrator’s rights or require Enterprise Customer to suspend or terminate System Integrator’s rights or MS will notify Enterprise Customer prior to suspending or terminating System Integrator’s rights. (C) Enterprise Customer must provide a copy of the System Integrator Agreement to MS upon request. (D) The System Integrator Agreement must have requirements that are the same for System Integrator as those imposed on Enterprise Customer by the Key Usage Agreement set forth in Section 2(d)(iii). (5) Company may also allow Enterprise Customer to engage a System Integrator to provide and/or install Additional Software and Support Software. Company remains responsible for support for all Additional Software and Support Software as set forth in Section 7 (Product Support) of this Agreement. (e) Updates (1) Delivery (i) Company may distribute one copy of each Update for each Embedded System that was distributed with a Product. Company must distribute Updates only in the following manners: on external media (as described in the Media Guidelines) either included with, or separate from the Embedded System; or by download from a Company website (subject to Section 2(g)(8) (End User Downloads)) (ii) Channel members may distribute one copy of each Update for each Embedded System that was distributed with a Product. The Channel must distribute Updates only in the following manner: on external media provided by Company, either included with, or separate from the 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 (and not the Channel) may reproduce Updates on external media on Company premises (by employees or Contractors) or order them from an MS Distributor. (f) Recovery Images (1) Delivery (i) Company may distribute one copy of the Recovery Image for each Embedded System. Company must distribute Recovery Images only in the following manners: (1) on external media (as described in the Media Guidelines) either included with or separate from the Embedded System. (2) on a separate partition of the Embedded System hard disk drive. (3) on a 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. (4) by download from a Company website (subject to Section 2(g)(8) (End User Downloads)) (ii) Replacement Hard Disk Drive. Company may distribute to an End User an appropriate number of Recovery Images preinstalled on replacement hard disk drives (“Recovery Image HDD”) provided that (1) the number of Recovery Image HDDs does not exceed the number of Embedded Systems containing that Image originally distributed to the End User; (2) the original hard disk drive distributed with the Embedded System fails and is no longer operable; (3) the End User requests such Recovery Image HDDs; (4) the distribution is provided directly by Company and not through the Channel; (5) Company must ensure that the Recovery Image HDD can only be used on the applicable Embedded System; 11 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (6) Company must ensure that a commercially reasonable authentication of the Embedded System is performed prior to the use of the Recovery Image HDD; (7) the Product included in each Recovery Image HDD must be identical to the Product included in the originally distributed Image along with all required Supplements; (8) Company will not market the availability of the Recovery Image HDD except inside the Embedded System package or on Company’s support web page; and (9) Company shall maintain the following information for each Recovery Image HDD as part of their records, which are subject to audit under Section 8 (Records; Audit) of this Agreement: Name and address of End User; End User’s unique system identifier (e.g., system ID, serial number); Records that prove End User received an original hard disk drive distributed with the Embedded System; Records that prove End User received a replacement hard disk drive Recovery Image As required in Section 15 (Government Regulations) of this Agreement, Company’ collection of the information provided in this Section 2 must comply with all applicable data protection and privacy laws. (iii) Outsource Manufacturer Sublicense. Company may sublicense to OMs (as part of an OM Sublicense pursuant to the Integrator and Outsource Manufacturer Schedule of this Agreement) Company’s rights to (1) create a Recovery Image HDD, and (2) provide Recovery Image HDD separate from an Embedded System only as specified in Section 3(f)(1)(iii). The OM must maintain complete records of its activities related to the Recovery Image HDD, including the information required in the Recovery Solution Information in the Resource Guide. (iv) Recovery Image Distributed by Channel. Channel members may distribute Recovery Image HDD provided that (1) Channel members distribute only one Recovery Image for each Embedded System and only as a part of that Embedded System; (2) Recovery Images must be provided to Channel members by Company; (3) Company must distribute Recovery Images only to the members of the Channel with which Company has a direct business relationship; (4) Channel members may distribute Recovery Images separate from an Embedded System on external media as described in the Resource Guide, provided that (A) Channel members request the Recovery Image from Company on behalf of End Users, and (B) Channel members keep records related to such distribution, including a description of the Recovery Image and number of copies. (2) Reproduction. Only Company (and not the Channel) may reproduce Recovery Images on external media on Company premises (either by employees or Contractors) or order them from an MS Distributor. (3) Additional Software. Company may distribute Additional Software with a Recovery Image if it is needed to install or use the Recovery Image. Company must own or maintain licenses for the Additional Software. (g) 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 Update includes new license terms, then Company must update the License Terms for the Product accordingly. (2) 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. (3) When installed, the Update Image or Recovery Image must completely replace the existing Image (End User data and/or configuration settings may remain intact). (4) When installed, a Supplement will update certain portions of the MS Binaries included in the existing Image. (5) 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 12 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 End Users, Company agrees to include in the License Terms the number of authorized installations. (For example, “Authorized Number of Installations of Software = ___”). (6) 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 the separate media as a Recovery Image. (7) Company shall comply with the Media Guidelines for the labels and packaging of each Update or Recovery Image. (8) End User Downloads. Company may distribute Updates or Recovery Images 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 download. (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 <Name and Model of the Embedded System>. Any other use of this software is strictly prohibited and may subject you to legal action.” (9) No Royalty. There is no additional royalty owed to MS for the MS Binaries included in an Update or Recovery Image if it is provided to the End User without additional cost, except for a reasonable amount for shipping and handling. (h) Excluded License (1) License rights to any Product (or any MS or MS Affiliate intellectual property associated therewith) does 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. (2) Subject to this Agreement, Company may distribute the Products with (i) any software that is not subject to an Excluded License; or (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. (i) 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. (j) 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. 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 a front cover of the 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(j) (COAs and APM). (k) Test Units (1) Company Use (i) Company may install copies of the MS Binaries as part of an Image and use solely for the following non-production purposes: testing systems, supporting Product and/or Embedded Systems, training employees, developing hardware device drivers and other product extensions or features for the Product, conducting development in conjunction with the integration and operation of the Product with Embedded Systems, and benchmark testing Embedded Systems. (ii) Company may use a commercially reasonable number of the Product only in non-production environments on Company premises. No COAs are required on these Embedded Systems, but the Embedded System must be clearly marked “Test Units – Not for Sale” (or the equivalent). There is no royalty owed to MS for use of the Product on such Embedded Systems. Such test units may be kept and used during the term of this Agreement and its successor agreement. 13 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (2) ISV and IHV Use (i) For purposes of this Section 2(k)(2), “IHVs” means independent hardware vendors and “ISVs” means independent software vendors. (ii) Company may provide a reasonable number of BIOS-locked copies of Product software to its ISVs and IHVs to install and use solely for their internal testing of Embedded Systems. BIOS-lock is not required if the Product software uses Product activation or OA. No royalties or COAs are required for these copies. Company will pay MS, as liquidated damages, an amount equal to the Default Charge for each unit of Product distributed or put to unauthorized use by its ISV or IHV. (l) License Terms. Company must distribute License Terms with each Embedded System. (m) Additional Terms and Supplements (1) The following provisions apply to Supplements: (i) the terms of this Agreement and the applicable ATs will apply to any Supplements made available to Company. (ii) Company is licensed for Supplements only if Company is licensed for the Product that is supplemented. (iii) 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. (iv) the notice will also let Company know if there are any additional or different terms and conditions that apply to the Supplement. (2) If the Supplement is optional, and if Company does not use it, then the additional or different terms and conditions will not apply to Company. (3) 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. (n) IP Notices. Company must not remove or obscure any copyright, trademark or patent notices that appear on the Product as delivered to Company. (o) 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 or other site MS may designate. (p) Not a Stand-Alone Product: Distribution (1) 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. (2) Company shall develop and/or pre-install Product(s) on the Embedded System for distribution (i.e., sale, lease, or other transfer) to non-employees/contractors, unless otherwise provided in this Agreement. (q) Third Party Brand Names (1) Embedded Systems must be marketed, licensed, and distributed only under Company’s brand names and trademarks and those marks listed in the Use of Third Party Brand Schedule. (2) Company represents and warrants that Company will not list on the Use of Third Party Brand Schedule any names or trademarks that infringe any rights of any third party. Company shall defend, indemnify, and hold MS and its Suppliers harmless from any claim, damages and reasonable attorneys' fees arising out of Company’ use of such names and trademarks. (3) If a third party wishes to market or distribute Embedded Systems with the Product logo, then the third party must first execute the applicable logo license with MSCORP. Company shall defend, indemnify, and hold MS and its Suppliers harmless from and against all claims, damages, and reasonable attorneys' fees that MS and its Suppliers incur if a third party markets or distributes Embedded Systems without executing, or in breach of, the applicable logo license. (r) 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 (when Product requires 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 a Product 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. 14 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (3) If a member of its Channel breaches these terms, Company must stop distributing Product to that Channel member within 10 days of becoming aware of the breach (unless the Channel member has cured that breach within that time). (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. (s) Third Party Software Providers. 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 Subsections (1) and (2) above 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. (t) 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. (u) No High Risk Use WARNING: The Products are not fault-tolerant. The Products are not designed or intended for any use in any Embedded Systems where failure or fault of any kind of the Product could reasonably be seen to lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). Company is not licensed to use, distribute, or sublicense the use of the Products in High Risk Use. High Risk Use is STRICTLY PROHIBITED. Company agrees not to use, distribute, or sublicense the use of the Products in any High Risk Use. Company must inform End Users in writing of the limits in this Section. (v) 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. (w) 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 any Product; or (2) distribute, sublicense, lease, rent, loan or otherwise transfer the OPK or any Product to any third party. (3) Company acknowledges that MS retains all copyright, patent, moral, trademark, title and other proprietary and intellectual property in the Products OPKs. (x) 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. (y) Sample Code. Subject to all terms and conditions of this Agreement, MS grants to Company a non-exclusive, 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 CD provided with an Embedded System. 3. 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. 15 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (b) 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. 4. Company’s Duties (a) Company will: (1) determine that each Product is suitable in quality and performance for use in Embedded Systems; (2) provide information to End Users about the proper use of the Embedded Systems including information on how to safely operate the Embedded Systems; (3) ensure the Embedded System meets the relevant standard of care for such devices; and (4) provide appropriate notices or warnings to End Users of Embedded Systems or others who may be affected by such use. (b) Company agrees to defend, indemnify, and hold MS Parties harmless from and against all damages, costs, and attorneys' fees arising from claims or demands associated with breach of this Section 4(Company’s Duties). 5. Limitations of Liability (a) 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 for that Product licensed under this Agreement. This limit includes MS' duties arising under Section 7 (Intellectual Property Infringement). The liability limit in this Section 5(a) (MS Liability), however, does not apply to any attorneys’ fees and expenses incurred by MS under Section 7 (Intellectual Property Infringement) only. (b) 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 negligence), misrepresentation, strict liability or product liability; and (iii) even if any remedies fail of their essential purpose. (c) Release. Company releases MS Parties from all liability in excess of the limits in this Section 5 (Limitations of Liability). This release includes any claim for indemnification or contribution even if such claims arise under local law. 6. 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 their other embedded systems. At a minimum, Company must provide commercially reasonable telephone support. 16 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 7. Intellectual Property Infringement (a) 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. “Misappropriate” has the same meaning given in the Uniform Trade Secrets Act. Each of the foregoing are individually referred to in this Agreement as a “Claim”. (b) Scope (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 (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) Other Claims (1) Regarding any claim (other than a Claim) related to a Product, 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) (Scope), 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 17 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 reimburse 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) If in connection with a claim (including a Claim), a court enjoins Company from distributing Products in its inventory and, within 60 days after the injunction (i) the injunction is not lifted; (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, then such Products will no longer be available for distribution under this Agreement. Company will return any corresponding COAs in accordance with Section 8 (Records; Audit) and the then-current Resource Guide. 8. Records; Audit (a) COA Records. Company will maintain accurate and complete records related to its activities under this Agreement and ATs. These records include records related to reproduction, installation, and distribution of Products, as well as Embedded Systems, COA and APM. (b) COA Returns. Company may return unopened Runtime License Envelopes, which contains the COA. 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 monthly 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, COAs that were properly returned to a MS Distributor, damaged or destroyed COAs, and COAs affixed to Embedded Systems or other APM that cannot be distributed for any reason. Company will make this accounting available to MS upon request. (d) 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 all 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; plus The payment amount for each Product will be the difference in units multiplied by the royalty rate for the Product. (e) Company Records; MS Inspection (1) Records Audit. MS may inspect Company’ records to verify compliance with this Agreement. MS will provide written notice to Company at least 30 days before MS inspects these records. (i) Company will keep these records for at least 2 years after the term of this Agreement. (ii) Company can keep these records at different locations. If MS asks for these records, Company will make them available at a single location. This includes copies of corresponding OMs records and books of account. Company will provide MS with reasonable access to these records. (iii) MS may ask third parties to help inspect these records. These third parties will be certified or chartered public accountants. They will be independent from MS. The third parties will not be hired on a contingent fee basis. (iv) MS will inspect the records during regular business hours. (2) Premises Audit. MS also may inspect Company’s premises, and OMs' premises. Company will grant access to MS with the following limits: (i) MS will give Company 14 days’ prior notice. (ii) MS’ access may 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 Company maintains its records. (iii) Company personnel may escort MS and the third parties helping MS. MS agrees that it will not unreasonably interfere with Company’s normal course of business. 18 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (3) Audit Costs. MS will provide Company with a summary of MS' findings and conclusions of each audit. (i) MS may determine that Company did not report correctly. If so, Company will pay the amount owed to MS upon written notice from MS (ii) MS may determine that Company has intentionally breached this Agreement or that the amount owed exceeds a Material Amount. If so, Company will also pay the costs of the audit. (4) Audit Frequency. MS will not do an audit more than once a year. However, MS may audit more than once a year if an audit finished during the preceding year revealed a discrepancy exceeding a Material Amount or an intentional breach of this Agreement. (f) Default Charge (1) Company must pay the Default Charge for each unit of Product distributed in violation of this Agreement by Company, its Channel, or OMs. (2) 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 unauthorized distribution of same. (3) The Default Charge for each Product is 130% of the royalty for the Product (excluding discounts and rebates), less any royalty paid. 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 unauthorized distribution of same. 9. Non-Disclosure (a) Unless the Agreement provides otherwise, ECE and all information provided in connection with them will be treated as confidential information under the Microsoft Corporation Non-Disclosure Agreement (OEM Standard Reciprocal) between Company and MSCORP (the “NDA”). (b) If Company and MSCORP do not have an NDA in place, then parties shall keep confidential the Product, the terms of the Agreement, and any other non-public information disclosed to the other party. Non-public information includes, for example, pricing information; parties licensing negotiations or terms; and business policies, practices, and know-how. 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 10 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, but failure to do so will not affect the effectiveness of the assignment. 11. Term This Agreement is effective from the Start Date until the End Date. 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) materially 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 (License Grants and Limitations), 8 (Records; Audit) or 9 (Non-Disclosure) of this Agreement, then any (1) termination or (2) MS requests to MS Distributors regarding orders from Company will be effective upon notice to Company. 19 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (c) Notice for Bankruptcy. If any of the events in Section 12(a)(3). occurs, then (1) termination is effective upon notice to Company or as soon as is permitted by applicable law; and (2) 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) (Notice for Material Breach) and 12(c) (Notice for Bankruptcy) (but including non-material breaches of Sections 2 (License Grants and Limitations), 8 (Records; Audit) or 9 (Non-Disclosure), 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 must, at Company’s expense, return the Deliverables and Products, including any APM and COAs in its possession (as well as those in a OM’s or Integrator’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 (Definitions), 2(q) (Channel), 3 (Nature of Product; No Warranties), 5 (Limitations of Liability), 6 (Product Support), 7 (Intellectual Property Infringement), 8 (Records; Audit), 9 (Non-Disclosure), 12(e) (Return Upon Termination or Expiration), 13 (Notices), 14 (Choice of Law; Jurisdiction and Venue; Attorney’s Fees), 15 (Government Regulations) and 16 (General) shall survive termination or expiration of this Agreement. 13. Notices (a) All notices must be in writing on MS or Company letterhead, and signed by an authorized representative of that party (“Party Written Notice’). (b) Each party also may provide notice by sending the scanned Party Written Notice by: (1) fax to the fax number listed in the Notices and Contact Schedule; or (2) email at the email address listed in the Notices and Contact Schedule. (c) The parties must address all Party Written Notices, authorizations, and requests related to this Agreement as stated in the Notices Schedule and Contact. Party Written Notices will be deemed received seven days after any of the following occur; (1) for a notice address in the U.S.A.: when the Party Written Notice is deposited in the U.S.A. mails, postage prepaid, certified or registered, return receipt requested. (2) for a notice address in a member country of the European Union (“EU”) or European Free Trade Association (“EFTA”): when the Party Written Notice is deposited in the EU or EFTA mails, prepaid recorded delivery. (3) when the Party Written Notice is sent by air express courier, charges prepaid. (4) if the Party Written Notice is by MS regarding updates or changes to MS information, instructions, or forms: seven days after Party Written Notice is sent via email or posted on the ECE. (5) for fax or email notices sent by Company: Seven days after Party Written Notice is sent via fax or email. (d) Notices Schedule. Each party must keep all information in the Notices and Contact Schedule complete and current. Each party will provide the other party with Party Written Notice of any changes. (e) If there has been a Company name change, MS may require Company; (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. (f) 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; Attorney’s Fees (a) Governing Law/Jurisdiction – MSLI. If MS is defined as MSLI, Washington State law governs this Agreement and any claims for breach of it, regardless of conflict of laws principles. The federal courts in Washington State and New York State are the exclusive venues for all disputes arising from this Agreement. If there is no federal subject matter jurisdiction, then the state courts of Washington State are the exclusive venue. Each party consents to the exercise of personal jurisdiction by these courts. Each party agrees that it cannot revoke this consent. 20 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (a) Governing Law/Jurisdiction - MIOL. If MS is defined as MIOL, 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 the 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. (b) Injunctive Relief. MS may pursue injunctive relief against Company in any forum to protect its intellectual property rights. If MS pursues injunctive relief in a forum other than those specified in this Section, MS will give prior notice to Company. No notice is required if MS reasonably determines that doing so will prevent it from reasonable protecting its intellectual property. (c) UN Convention. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. (d) Attorney’s Fees. If either party employs attorneys to enforce any rights related to this Agreement, then 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: (1) U.S. Export Administration Regulations; and (2) importation, manufacturing, end user, end-use, and destination restrictions issued by U.S. and other governments. (b) Anti-Corruption and Anti-Money Laundering Policy. MS and Company are committed to observing the standards of conduct set forth in the anti-corruption and anti–money-laundering laws of the countries and regions in which they operate. MS and Company agree to the following policy. (1) Compliance with Anti-Corruption Laws. MS and Company will comply with all applicable anti-corruption laws, including the United States Foreign Corrupt Practices Act (“FCPA”). No MS or Company representative shall, directly or indirectly, offer or pay anything of value (including gifts, travel, entertainment expenses, and charitable donations) to any official or employee of any government, government agency, political party, or public international organization, or any candidate for political office, to (i) improperly influence any act or decision of such official, employee, or candidate for the purpose of promoting the business interests of the other party in any respect, or (ii) otherwise improperly promote the business interests of the other party in any respect. (2) Anti–Money Laundering. No MS representative shall use its relationship with Company to attempt to disguise the sources of illegally obtained funds. No Company representative shall use its relationship with Microsoft to attempt to disguise the sources of illegally obtained funds. (3) No Retaliation. MS and Company will not retaliate against anyone who has, in good faith, reported a possible violation of this Section 16(b) (Anti-Corruption and Anti-Money Laundering Policy) or refused to participate in activities that violate this Section 16(b) (Anti-Corruption and Anti-Money Laundering Policy). (4) MS reserves the right to terminate the License Agreement if MS has a reasonable belief that Company is in breach of the anticorruption and/or anti-money laundering policies set forth in this Section 15. (c) Government Approvals. Company must obtain any required local government approvals at their own expense. (d) Additional Information. Company must comply with all applicable laws and regulations (including tax and privacy). 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. (b) ECE Schedule. Company shall comply with the terms and conditions in the ECE Schedule. (c) 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. (d) Severability. If any provision of this Agreement or ATs 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. 21 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (e) 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. (f) Interpretation. The headings and 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. (g) 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. (h) 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. 22 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 INTEGRATOR AND OUTSOURCE MANUFACTURER SCHEDULE 1. Overview This Schedule sets forth the terms under which Company may engage one or more Integrators and/or OMs One party may provide both OM and Integrator services as long as such party satisfies all requirements associated with both OM and Integrator under this Integrator and Outsource Manufacturer Schedule. “3P Contractors” mean individuals under TPI Party’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 TPI Party’s obligations under the Sublicense (defined in Section 6 (Written Sublicenses) below). “TPI Party” means an OM or an Integrator. All Company’s OMs and Integrators are collectively referred to as “TPI Parties. 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 Integrator and Outsource Manufacturer Schedule remaining satisfied at all times. 3. Outsource Manufacturer Rights Each OM shall have the following rights: (a) to install the Product as part of the Image on the hard disk drive or in non-volatile solid-state memory of the Embedded System; (b) to place the Image given to the OM by Company, as installed on non-volatile solid-state memory, into the Embedded System; (c) to install (but not reproduce on separate media) MS Binaries as part of the Image on a separate partition of the Embedded System hard disk drive or on a separate hard disk drive in the Embedded System reserved for backup utility programs and recovery purposes only if the Image installed on the main drive fails; (d) to permanently affix an applicable COA for each Product to an accessible location on each Embedded System, unless a COA is not required. If this is not physically possible, OM must attach the COA to the exact location specified by Company, as agreed between Company and MS. The location is typically: (1) the APM, (2) the License Terms, (3) recovery media, or (4) Company’s End User manual distributed with the Embedded System. OM must include the APM, if any, with each Embedded System. OM must not distribute APM or COAs separate from the Embedded System or make these available through any other means or channel. For example, OM must not sell, give, or otherwise transfer APM or COAs to any third party except as required by this Section 3 (Outsource Manufacturer Rights); (e) to include one copy of each applicable License Terms and APM with each Embedded System inside the sealed Embedded System package; (f) to distribute Embedded Systems on behalf of Company-to-Company, the Channel, and End Users. (g) Company may order COAs and APMs from a MS Distributor and request that MS Distributor deliver the COAs and APMs to one or more OMs; alternatively (1) Company may place a purchase order with the MS Distributor and OM may place orders against the PO established by Company, or (2) An OM may directly place a purchase order and receive shipments from Company’s MS Distributor for its use on behalf of Company, provided the OM does the following things: (i) OM must reference Company’s name, Company’s Customer License Agreement Number, and the activity that it is performing for Company; (ii) OM must use COAs or APM purchased for Company only on Company’s Embedded Systems; and, (iii) OM must notify Company every time it places a purchase order directly with Company’s MS Distributor. (h) The rights in Subsections (a) through (g) are subject to these conditions: (1) the OM must abide by the same terms applicable to Company under the CLA and ATs; and (2) all of the terms in this Agreement must remain satisfied at all times. 23 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 4. Adding New Integrators or Outsource Manufacturers (a) At least 30 days before Company intends to engage a third party as an Integrator or an OM, Company must provide its MS Distributor or MS the name, address, contact information, and business profile of that third party on Company letterhead. 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) A written Sublicense as described in Section 6 (Written Sublicenses) below must be in effect; (c) MS must approve any third party in writing before it begins work under this Agreement and ATs; and (d) Company shall notify MS promptly of any changes in the contact information of its Integrators or OMs. 5. Using an Existing Integrator or Outsource Manufacturer (a) MS must approve any third party in writing before it begins work under this Agreement and ATs. MS written approval is not required if all of the following are true: (1) the TPI Party was approved by MS in writing under a prior CLA between MS and Company; (2) MS has not notified Company that such TPI Party must be re-approved in writing under this Agreement; (3) Company has had at least one CLA in place at all times from the time that the TPI Party was approved by MS; and (4) the original Sublicense is still in effect. For the purposes of this Agreement, “original Sublicense” means the agreement in place between Company and its TPI Party as applicable at the time MS originally approved such TPI Party. (b) Company shall notify MS promptly of any changes in the contact information of its TPI Party. 6. Written Sublicenses Company must enter into a written agreement (“Sublicense”) with each TPI Party. 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 TPI Party: (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. For each OM, the records must include the number of Images installed, the number of COAs and Embedded Systems distributed, and the Embedded System device type. (3) to allow access to its premises by audit or inspection teams sent on behalf of MS or Company. Such teams may audit the TPI Party’s records or inspect its premises to determine compliance with the Sublicense. Access must be provided with or without notice. (4) to suspend all activities under the Sublicense upon notice from Company or MS. MS will notify Company before requiring a TPI Party 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. Each return must comply with the MS Distributor’s return policies and the returns and destruction process and procedure on the ECE. (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 and ATs. (4) to deliver the Image, applications, and software drivers it creates only to Company. (d) Each Sublicense with an OM must require the OM: (1) to comply with requirements that are the same as those imposed on Company by the Agreement and ATs. (2) to install only the Images provided by Company. The OM may configure settings as documented by Company that are required for proper operation for the Embedded System’s configuration. The OM must not alter the Image in any other manner. 24 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (3) to track and account for COAs as follows: (i) The OM must maintain a log of each damaged or destroyed COA. For each such COA, the log must include the date damaged or destroyed, Product name, COA number and cause of damage or destruction. The OM must return each damaged COA to Company or to the MS Distributor from which the COA was acquired. (ii) The OM must account for COAs in inventory on a quarterly basis. The COA reconciliation will account for beginning and ending COA inventory, COA acquisitions from MS Distributors, COA distribution with Embedded Systems, customer’s returns, COAs that were properly returned to the MS Distributor, and COAs affixed to Embedded Systems or other APM that cannot be distributed for any reason. OM will make this reconciliation available to Company and to MS upon request. (4) To distribute the Embedded System installed with the Image only on behalf of Company and only to Company, the Channel, or End Users. 7. Integrated Services and Manufacturing Agreements (a) If MS entered into a Microsoft OEM Integration Services and Manufacturing Agreement for Embedded Systems (the “Integrated Services Agreement”) with an entity, that entity may act as an OM for Company, subject to the terms of this Section 7 (Integrated Services and Manufacturing Agreements). With respect to the activities performed by that OM on Company’s behalf, the terms of Sections 3 (Outsource Manufacturer Rights), 6 (Written Sublicenses), 8 (Termination/Suspension), 9 (Performance Guarantee) and 11 (Copies of Sublicenses) do not apply and, instead, the parties agree as follows: (1) Company acknowledges that MS has entered into a separate Integrated Services Agreement with the OM that grants to the OM a license similar to Section 3 (Outsource Manufacturer Rights) of this Integrator and Outsource Manufacturer Schedule in support of the installation and other integration services to be provided by that OM for Company (2) Company must have in place with MS a CLA designating the OM to act under this Integrator and Outsource Manufacturer Schedule. (b) In addition to terms similar to those in Section 3 (Outsource Manufacturer Rights) above, the following requirements apply to the OM under the Integrated Services Agreement: (1) OM may order and acquire COAs for Products directly from MS Distributors for activities the OM is performing on behalf of Company. OM shall assume all risk of loss or damage to COAs and APMs in transit between MS Distributor and OM. (2) OM may not indicate OM’s brand names or trademarks or any third party mark on an Embedded System, unless (i) that Embedded System is embedded in Company’s product and is not readily viewable by End Users; (ii) that Embedded System is included with Company’s solution that provides primary and significant value to the Embedded System and no OM’s brand names or trademarks are used to market Company’s solution; or (iii) Company has a valid CLA that lists the OM’s name. In addition, if Company or OM indicates a brand name, trademark, or logo of Company, the OM or any third party on an Embedded System, that mark must not be used in any way that could cause confusion about whether Company is the manufacturer of the Embedded System and is responsible for all product support. (c) Under the Integrated Services Agreement, OM also must provide to Company a copy of the applicable Additional Terms (“AT”) for all Products that OM orders on behalf of Company for installation on Embedded Systems. Company agrees that shipment by OM of the Embedded Systems installed with those Products constitutes acceptance of the applicable ATs. For purposes of this Section, “AT” means the licensing terms and conditions for the applicable Product on the “Additional Terms” label affixed to the Runtime License Envelope. 8. Termination/Suspension (a) Company shall promptly terminate or suspend any affected Sublicense if: (1) Company knows that a TPI Party has breached a material provision of a Sublicense; (2) MS notifies Company of such a breach; or (3) a TPI Party has caused Company to be in breach of a material provision of this Agreement or an AT. (b) Company may resume using 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. 9. Performance Guarantee Company guarantees the performance of each TPI Party under its Sublicense. Such guarantee is unconditional and irrevocable. 25 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 10. 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 Integrator and Outsource Manufacturer Schedule or any Sublicense by Company, or a TPI Party. 11. 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. 12. Termination of Main Agreement If this Agreement terminates, then Company must terminate all Sublicenses. 13. Termination of Agreement; Survival. Sections 4(b), 6 (Written Sublicenses), 8 (Termination/Suspension), 9 (Performance Guarantee), 10 (Indemnification), 11 (Copies of Sublicenses), and 12 (Terminations of Main Agreement) of this Integrator and Outsource Manufacturer Schedule shall survive termination this Agreement. 26 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 USE OF THIRD PARTY BRAND NAMES AND TRADEMARKS SCHEDULE 1. License Grant and Determination of Mark Approval (a) MS grants to Company a non-exclusive, limited license to market, license or distribute Embedded Systems with third party brand names or trademarks (“Marks”) that do not include Company's name, or brand names or trademarks of both Company and a third party, on the Embedded System case and packaging, provided that all terms and conditions of this Agreement are satisfied. (b) Company shall contact its MS Distributor to submit for MS approval the Marks with which Company intends to market, license, or distribute Embedded Systems. (c) MS’ signature on this Agreement does not constitute MS approval of such Marks. However, if the Mark was previously approved by MS for Company under a prior Microsoft OEM Customer License Agreement for Use of Third Party Brand Names and Trademarks between MS and Company and MS has not notified Company that such Mark has been rejected, then it does not need to be re-approved under this Agreement. (d) If Company wants to use additional Marks, Company shall contact its MS Distributor to submit a new request. This request must be provided to MS no later than 30 days before Company intends to use such additional Marks. Company must have received an approval notice from MS for each additional Mark before Company begins marketing, licensing, or distribution of Embedded Systems with additional Mark. (e) Company will not submit any names or trademarks that infringe any rights of any third party. Company shall defend, indemnify, and hold MS and its Suppliers harmless from any claims or damages and reasonable attorneys' fees arising out of Company’s use of such Marks. 2. Additional Restrictions (a) Use or display of any logo of MS or MSCORP shall be limited to the terms of a separate logo license or published standard guidelines at http://www.microsoft.com/mscorp/ip/trademarks, if and as available from MSCORP. (b) Embedded Systems must be marketed, licensed, and distributed only under Company’s brand names and trademarks and those Marks listed in the Third Party Brand Table. (c) MS reserves the right to reject a requested Mark and/or to execute a direct license with the owner of such proposed Mark. (d) If a third party wishes to market or distribute Embedded Systems with the Product logo, Company shall ensure that the third party first executes the applicable logo license with MSCORP. (e) Company agrees to defend, indemnify, and hold MS and its Suppliers harmless from and against all damages, costs, and expenses, including reasonable attorneys' fees that MS and its Suppliers incur if a third party markets or distributes Embedded Systems without executing, or in breach of, the applicable logo license. 3. Termination (a) MS Remedies. MS may suspend any rights granted to Company under this Use of Third Party Brand Names and Trademarks Schedule and/or terminate this Use of Third Party Brand Names and Trademarks Schedule, in its entirety if Company breaches any provision of this Use of Third Party Brand Names and Trademarks Schedule. (b) Upon termination or expiration of this Use of Third Party Brand Names and Trademarks Schedule, Company shall cease use of all Marks and all of Company's rights under this Use of Third Party Brand Names and Trademarks Schedule shall cease. (c) Section 2(c) and Section 3 of this Use of Third Party Brand Names and Trademarks Schedule shall survive termination or expiration of this Use of Third Party Brand Names and Trademarks Schedule. 27 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 FIELD UPGRADE SCHEDULE 1. Additional Definitions. For purposes of this Field Upgrade Schedule: “Existing Image” means (a) an Image that includes a prior version of the MS Binaries, or (b) a software image that includes operating system different from the Product contained in the Field Upgrade Image. “Field System” means (a) an Embedded System, or (b) another Company system that meets the requirements for an Embedded System except that it does not include a Product (or other Microsoft operating system product), that has been distributed to an End User and that contains an Existing Image. “Field Upgrade Image” means an Image that Company distributes to End Users of Field Systems. 2. Grant MS grants Company the right to copy and distribute Field Upgrade Images directly to End Users for replacing existing software on certain Field Systems if all of the conditions below are, and remain, satisfied. 3. Existing License Company must be licensed under the Agreement for the Product that Company desires to distribute under this Field Upgrade Schedule. 4. Design (a) Company may engage an Integrator to create Field Upgrade Images on its behalf, provided that Company ensures that the Integrator distributes the resulting Field Upgrade Image only to Company. (b) Company (or its Integrator acting on its behalf) must ensure that the Field Upgrade Image is useable only on the applicable Field System. Before the End User can use the Field Upgrade Image, Company (or its Integrator) must ensure that a commercially reasonable authentication of the Field System is performed. (c) When installed, the Field Upgrade Image must completely replace the Existing Image (End User data and/or End User configuration settings may remain intact). The Field Upgrade Image must erase or permanently disable the Existing Image. (d) Once the Field Upgrade Image is installed on a Field System, the Field System must meet the requirements of an Embedded System as set forth in the Core Terms of the Agreement. 5. Packaging Company must comply with the Media Guidelines for the labels and packaging of the Field Upgrade Image media. Company must distribute one COA affixed to the external media packaging of each copy of a Field Upgrade Image. However, COAs are not needed for: (a) copies of Field Upgrade Images placed in use on additional units of the same model of Field System over an End User’s network as allowed in this Field Upgrade Schedule. (b) copies of Field Upgrade Images downloaded by an End User as allowed in this Field Upgrade Schedule. (c) copies of Field Upgrade Images for Products that do not require COAs. Notwithstanding Section 5(3) above, if Company elects to obtain COAs for Field Upgrade Images as provided under this Section 5, Company must affix a COA on the Embedded System or distribute a COA Card as specified in the Resource Guide. 6. Separate Pricing Notwithstanding anything to the contrary contained in Section 2(p) (Not a Stand-Alone Product) of the Core Terms, Company may advertise, provide a separate price for, or otherwise market the Field Upgrade Image separately from an Embedded System. 28 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 7. Copying Company can make copies of the Field Upgrade Image: (a) on Company’s premises with Company’s employees or Contractors; or (b) via an MS Distributor. 8. Distribution and Installation (a) Company and its Channel may distribute one Field Upgrade Image to each End User of a Field System only to upgrade the End User’s Field System. Field Upgrade Images may be distributed in object code form either: (1) on external media, or (2) via Company’s restricted access website as a download, as provided in Section 8(d) (Downloads) below. (b) Field Upgrade Image must be installed only on a Field System. (c) Multiple Units (1) Some End Users may have more than one unit of the same Field System with the same Existing Image. Such End Users may use one copy of the Field Upgrade Image for all these units. (E.g., the Field Upgrade Image may be installed on the End User’s internal network and used as described in this Section). (2) Company shall advise such End Users that the Field Upgrade Image may only be installed onto additional units of the same model of Field System. Company agrees to include in the License Terms for such End Users the number of units authorized. (For example, “Authorized Number of Installations of Software = ___”). (d) Downloads. Company may distribute Field Upgrade Images for this Product via Company’s website as a download if all of the following conditions are satisfied: (1) Company must acquire from an MS Distributor at least one COA for each Product included in one or more Field Upgrade Images, in order to obtain a Runtime Key, when Runtime Key is required. (2) Company must make the Field Upgrade Image available only on the “customer support” Section of their websites or on a Section that provides similar downloads. (3) Company shall clearly state the purpose of each Field Upgrade Image and the Field System on which End Users may use the Field Upgrade Images. (4) If the Product requires License Terms, then Company shall ensure that the End User must perform a “click accept” of the following statement before accessing the Field Upgrade 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 <Name and Model of the Embedded System>. Any other use of this software is strictly prohibited and may subject you to legal action.” (5) Company shall ensure the Field Upgrade Image will not download until a commercially reasonable authentication process of each Field System is performed. (6) Company shall provide each End User with an electronic or hardcopy invoice as proof of purchase for each downloaded copy of the Field Upgrade Image. (7) Company must maintain accurate records of the number of Field Upgrade Images distributed and serial numbers of Field Systems on which such Field Upgrade Images were installed. Company shall provide copies of such records to MS upon request. (8) Company must not allow downloads of Field Upgrade Images via Channel websites. 9. Sublicenses and End User Notices (a) Company shall use License Terms to license the End User to use the Field Upgrade Image. (b) Company will require its End Users to keep the Field Upgrade Image if originally delivered on separate media. Once a Field Upgrade Image is installed, the End User may use the Field Upgrade Image on its original media as a Recovery Image. Company shall establish a commercially reasonable procedure to assure the return or destruction of any replaced Recovery Image media. 10. Records, Reporting, and Payments (a) Each calendar month and in accordance with MS Distributor’s instructions, Company shall report the number of Field Upgrade Images separately on its sales-out royalty report to MS. Field Upgrade Images to be reported include those distributed by Company on a media or via download. 29 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (b) Company shall pay MS Distributor the applicable Product royalty in the Agreement for each copy of Product distributed as a component of the Field Upgrade Image, placed in use by an End User over its network as described above. 30 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 MIGRATION RIGHTS SCHEDULE 1. Additional Definitions “Delivery Date” means the date when the Migration System is distributed to the End User. “Final Software” means the Product in the Image that must be permanently installed on the Migration System by the end of the Migration Period. Final Software is a successor version of Prior Software. “Migration Period” means the 12 month period following the Migration System Delivery Date. “Migration Systems” means Embedded Systems that have not been previously distributed and that comply with the descriptions set forth in Section 2(a) and (b) below. “Prior Software” means a Product in the Image installed on the Migration System temporarily, before or during the Migration Period. Final Software is a successor version of Prior Software. 2. Migration Systems Distribution. Upon written request of an End User, Company may distribute Migration Systems as described in (a) and (b) below, provided that Company complies with all the terms of this Migration Rights Schedule. (a) distribute Embedded Systems to that End User that contain an Image that includes the Prior Software on a temporary basis, and then upgrade those Embedded Systems with an Image containing the Final Software. (b) distribute Embedded Systems to that End User that contain an Image that includes the Final Software, migrate those Embedded Systems on a temporary basis to an Image containing the Prior Software, and then to upgrade those Embedded Systems back to an Image containing the Final Software. Both Final Software and Prior Software must be distributed with the Migration System at the same time. 3. Permitted Migration Paths. The Final Software must be a successor version of the Prior Software, or must be listed on the ECE as an additional permitted migration path. 4. End of Life. Company may not, in any event, distribute either the Prior Software or the Final Software after its respective MS end of life date. 5. Supplements. Company must include all required Supplements. (a) for the Prior Software on any Migration System distributed with the Prior Software, and (b) for the Final Software on any Migration System distributed with the Final Software. 6. Software Licenses. Company must be licensed to distribute both the Prior Software and the Final Software. 7. COA/APM Distribution. In accordance with Section 2(j)(COAs, and APM) of the Core Terms of this Agreement, Company shall (a) shall affix a COA for the Final Software to each Migration System, and (b) shall distribute any required APM with each Migration System. 8. Recovery Images. Company shall distribute a Recovery Image containing the Final Software (“Final Software Image”) and a Recovery Image containing the Prior Software (“Prior Software Image”) to the End User together with the Migration System. Company shall distribute Final Software Images either on external media or via Company’s website as a download in accordance with Section 2(g)(8) (End User Downloads) of the Core Terms of this Agreement. Company may only distribute the Prior Software Image on the Embedded System, either on a separate partition or a separate hard disk drive on the Embedded System. 9. Installation on Company Premises. Company and its Outsource Manufacturers shall install the Prior Software or the Final Software (as applicable) as part of an Image on the Migration Systems only on Company’s premises by Company employees or Contractors. 31 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 10. No Concurrent Use. Company shall establish a commercially reasonable procedure to ensure End User Customers do not concurrently use both the Final Software and the Prior Software on the Migration Systems. 11. Final Software Installation (a) Upon an End User’s request, Company shall upgrade the Migration System by installing the Final Software Image. Only the End User, Company, or Service Representatives of either may install the Final Software Image on the End User’s Migration Systems. (b) (i) If Company elects to provide the End User with only a single copy of the Final Software Image on external media for installation on more than one Migration System, or (ii) if End User installs the Final Software Image via the End User’s internal network, then Company shall advise its End User that the Final Software Image may only be installed onto additional units of the same model of Migration System. (c) Final Software must be installed on a Migration System within the Migration Period. 12. Prior Software Image Destruction. Company shall require the End User to destroy the Image containing the Prior Software and to erase any and all system copies of the Prior Software after the installation of the Image containing the Final Software on the Migration System. Prior Software must be removed from the Migration System on or before the end of the Migration Period. 13. Final Software License Terms. Company shall distribute License Terms for the Final Software with the Migration System and shall include the following, additional terms in the “Grant of Software License” Section: “Use of Previous Version of the Product. If the Certificate of Authenticity that accompanies the DEVICE identifies the SOFTWARE as Microsoft® Windows® <name of Final Software> (the “Final Software”), then in lieu of using Final Software, you may request that [Company] install [[or, if agreed, in writing, with [Company] you may install yourself]], and may temporarily use, Microsoft® Windows® <name and version of Prior Software> (the “Prior Software”) on the DEVICE, provided: (a) the Prior Software is deemed “SOFTWARE” for the purposes of these License Terms and use of the Prior Software shall be in compliance with all the terms of these License Terms; (b) you do not simultaneously use both versions of the SOFTWARE on the DEVICE; (c) you do not loan, rent, lease, lend or otherwise transfer the CD or back-up copy of either version of the SOFTWARE to another End User, except as otherwise provided in the transfer provisions of these License Terms; (d) [[unless otherwise agreed with [Company]], you allow only [Company] perform the upgrade from the Prior Software to the Final Software; and (e) upon upgrading to the Final Software you destroy the media version of the Recovery Image of the Prior Software and erase any and all system copies of the Prior Software.” 32 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 DOWNGRADE RIGHTS SCHEDULE 1. Additional Definitions “Custom Image” means an Image customized for a specific Enterprise Customer that includes Downgrade Software, and may include customer-requested applications, drivers, and other customizations to the Embedded Application or Embedded System. “Custom Image Systems” means an Embedded System with a preinstalled Custom Image. “Downgrade Software” means a prior version of the Product that is no longer available for distribution by Company under a License Agreement. 2. Downgrade Rights (a) Subject to the terms of this Downgrade Rights Schedule and Company’s compliance with those terms, Company may, at the specific request of an Enterprise Customer: create a Custom Image using an image provided by the Enterprise Customer; preinstall that Custom Image on Embedded Systems in accordance with the terms of the applicable ATs; and distribute the Custom Image Systems directly to the requesting Enterprise Customer. (b) Downgrade Rights only apply to Custom Image Systems that have not been distributed. 3. Software Versions The Product included in the Custom Image is a previous version of the Product that appears on the affixed COA distributed with the Custom Image System. The foregoing also applies to recovery solutions for Custom Image Systems. 4. Custom Images Containing Downgrade Software – Image Created by Company (a) Company must be licensed for the Product that appears on the affixed COA distributed with the Custom Image System. (b) If Company was previously licensed for Downgrade Software and has retained the OPK for the Downgrade Software, then Company may only use the preinstallation tools in the OPK for the Downgrade Software to capture and deploy the Custom Image on the Custom Image Systems. (c) An Enterprise Customer must provide an image that includes Downgrade Software to the Company. (d) For Custom Images that include Downgrade Software, Company may choose not to provide a recovery solution. 5. Royalties (a) Company shall pay MS Distributor royalties for each unit of the Product named on the COA that is affixed to and distributed with the Custom Image Systems. (b) Company does not owe MS Distributor any additional royalty for the Downgrade Software distributed under this schedule. (c) This Section 5 does not relieve Company of its royalty payment for any Product included in the Custom Image or for any Product that allows for the use of Downgrade Software. 6. Indemnity Company will indemnify and defend MS and MS Affiliates from and against any damages, claims, costs, judgments (or settlements to which Company consents) and expenses (including reasonable attorneys’ fees) arising from any unlicensed software on the Custom Image (including all Microsoft software, unless Company has taken commercially reasonable steps to verify the Enterprise Customer has a valid license for those products). MS reserves the right, in its sole discretion, to assume at any time the defense of any such claim arising from any unlicensed Microsoft software installed on the Custom Image. Any amount due to MS or MS Affiliates under this Section 6 will be reduced by the amount, if any, of any Default Charges already paid to MS by Company for the unlicensed software products on the Custom Image(s). The indemnity in this Section 6 will survive termination or expiration of the Agreement. 33 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 7. Other Duties Company must comply with Section 2(m) (Additional Terms and Supplements) of the Core Terms of this Agreement with respect to the release of any required Supplement for the Product included in the Custom Image. 8. Support. MS is not 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 provide support for its other embedded systems. At a minimum, Company must provide commercially reasonable telephone support. 34 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 ECE Schedule 1. Definitions. For purposes of this ECE Schedule “Company Administrators” means the Users designated by Company on the Notices Schedule. “Password Information” means passwords, encryption keys or other identifiers used for the Sites’ security. “Sites” means 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. 2. Terms of Use (a) 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. (b) Company must give MS not less than 48 hours’ notice prior to changing the Company Administrator(s). Notices for those changes should be sent to mailto:[email protected]. 3. Site Suspension or Termination 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. 4. Security Level 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. 5. No Warranty and Limited Liability MS provides each of the Sites “as 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. 6. Reservation of Rights 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 two years of transactional records. MS will have no duty to retain or make available the ECE information or records for later access. 7. Confidentiality 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 (Non-Disclosure) of the Core Terms of this Agreement. 8. 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 35 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems OEM CLA Version 5.0 (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 these 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. 9. Access to Sites Only the Company Administrators may grant or terminate Users’ access to, or other authorities for ECE. Company Administrators must keep Password Information secure from unauthorized access. 10. 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. 36 of 36 CONFIDENTIAL Microsoft OEM Customer License Agreement for Embedded Systems
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