AMENDMENT NUMBER ONE to OPEN TOOLS LICENSE AGREEMENT
Exhibit 10.7 |
AMENDMENT
NUMBER ONE |
This Amendment Number One (the “Amendment”) to the Microsoft Open Tools License Agreement dated as of March 2, 1999 (the “Agreement”) is entered into by and between MICROSOFT CORPORATION (“MS”) and INPRISE CORPORATION (“Company”) as of June 2, 1999 (the “First Amendment Effective Date”). |
Effective as of the Amendment date indicated above, the below signed parties hereby mutually agree that the indicated portion(s) of the above referenced license agreement (hereinafter the “Agreement”) are hereby amended as follows: |
1. Section 1(j) of the Agreement is hereby amended and restated in its entirety as follows: |
1(j) “Software” shall mean, collectively, the Object Code Files, Header and Library Files, Core Files, Documentation Sources, Sample Code, and Redistributables delivered to Company pursuant to Section 5(a)(i), 5(a)(ii), and 5(a)(iii). Software shall also include any foreign language translations of such files that MS has prepared, provided COMPANY requests delivery of such files and pays any applicable license fees. |
2. Section 1(k) of the Agreement is hereby amended to add the words “Windows 2000” after the words “Windows 98.” |
3. The following Section 1(m) is hereby added to the Agreement: |
1(m) “Open Tools Software” shall mean that portion of the Software that is delivered to the Company as part of the MS Open Tools program pursuant to the terms of Section 5(a)(i) of this Agreement. |
4. The following Section 1(n) is hereby added to the Agreement: |
1(n) “Windows Platform SDK” shall mean the MS software development kit that is intended by MS to include all the files that MS believes an application developer would reasonably need in order to develop applications that target Microsoft Windows 98, Microsoft Window 2000, and Microsoft BackOffice 4.5, including any new upgrades, versions and successors of such products that are released during the term of this Agreement. The parties understand and agree that the Windows Platform SDK does not include compilers, debuggers or other program authoring tools unless expressly included therein by MS in its sole discretion. |
5. The following Section 1(o) is hereby added to the Agreement: |
1(o) “Windows Platform SDK Subset” shall mean the entire Windows Platform SDK, except for those files that are identified in writing by MS at the time they are delivered to the Company pursuant to Section 5(a)(ii) of this Agreement as being (i) licensed from a third party with redistribution rights that do not allow MS to license those files to Company for distribution with its Tools pursuant to the terms of this Agreement, (ii) old or obsolete files in the view of MS unless they are included in the then-current version of Microsoft Visual Studio (in which case, Company agrees to consider the request that it exclude such files from forthcoming updates and versions of its Tools in good faith, but shall not be obligated to do so), or (iii) files about which MS has insufficient information or knowledge to grant distribution rights to the Company. |
6. The following Sections 2(a)(iv) is hereby added to the Agreement: |
2(a)(iv)to distribute with its Tools – the Windows Platform SDK Subset in accordance with the rights granted herein for the categories (e.g. Object Code Files, Header and Library Files, Core Files, Sample Code, Documentation Sources, and Redistributables) into which the files of the Windows Platform SDK Subset are placed as set forth in the license addendum(s) delivered to |
Company with the Windows Platform SDK (the “License Addendum(s)”). Company may also distribute old or obsolete files included in the Platform SDK (provided Section 1(o)(i) and 1(o)(iii) do not apply) but only as part of upgrades or new versions of Tools that are marketed only to its Tool customers that require such files to support legacy computer systems. Company shall not distribute with its Tools any versions of the Windows Platform SDK that it receives under license agreements or non-disclosure agreements that are outside the scope of the Open Tools program, except as may be specifically permitted pursuant to the terms of such agreements. All versions of the Windows Platform SDK that are delivered as part of the Open Tools program shall include License Addendum(s). |
7. Section 2(b) of the Agreement is hereby amended to add the words “or Microsoft BackOffice 4.5 (including new updates, versions and successors thereof)” after the first occurrence of the words “MS Systems” in the fourth line of Section 2(b). |
8. The following provisions shall be added to the end of Section 3(c) of the Agreement: |
Notwithstanding the foregoing, Company may distribute with Tools commercially released prior to the date that Microsoft Windows 2000 is first available in final commercial form in the retail channel (the “General Availability Date”) all beta versions of the Windows Platform SDK Subset that MS delivers to Company after the First Amendment Effective Date and before the General Availability Date, provided that the Company (a) licenses the Windows Platform SDK Subset to end users of its Tools for evaluation and testing purposes only; (b) clearly marks such Windows Platform SDK Subset as “BETA” or pre-release code; (c) does not permit redistribution of the Windows Platform SDK Subset by end users with their applications or programs; (d) agrees to indemnify, hold harmless, and defend MS from and against any claims or lawsuits, including attorneys’ fees, that arise or result from the use of distribution of the Tools; and (e) is solely responsible for updating end users of the Tools with versions of such Tools that include the final Windows Platform SDK Subset. |
9. Section 5(a) of the Agreement shall be amended to be Section 5(a)(i) and wherever the word “Software” appears in such section, it shall be replaced with the term “Open Tools Software.” |
10. The following new Section 5(a)(ii) shall be added to the Agreement: |
MS agrees to provide Company with the same Windows Platform SDK that it provides to its own developer tools group and all other third parties. MS shall make its initial delivery of the current beta version of the Windows Platform SDK within ten (10) days after the First Amendment Effective Date. MS agrees to deliver one copy of all subsequent beta and final versions of the Windows Platform SDK and all upgrades thereto that MS delivers to third parties during the term of this Agreement no later than the date that MS delivers the same to its external customers. Upon request of Company, MS agrees to follow up in a prompt and commercially reasonable manner to (a) identify third party licensors of files that have been excluded from the Platform SDK Subset for the reason described in Section 1(o)(i) of this Agreement to the extent that MS is not bound to keep the identity of such licensors confidential, (b) explain why MS views filed excluded pursuant to Section 1(o)(ii) as being old or obsolete, and (c) provide information about why files excluded under Section 1(o)(iii) of this Agreement are not currently redistributable by the Company and provide a commercially reasonable time frame for when MS will be able to ascertain with certainty whether such excluded files are distributable pursuant to the terms of this Agreement. From time to time during the term of this Agreement, Company also may request that ▇▇ ▇▇▇▇▇ the categorization of files included in the Windows Platform SDK Subset. MS agrees to consider all such requests in good faith and agrees that it shall not unreasonably withhold its agreement to make such amendments. |
11. The following new Section 5(a)(iii) shall be added to the Agreement: |
2 |
If at any time during the term of this Agreement MS distributes one or more files (the “Requested Files”) in a beta or commercially released version of Microsoft Visual Studio, including new upgrades, versions and successors thereof (“Visual Studio”) that are not offered to the Company for distribution under this Agreement as part of the Platform SDK Subset or the Open Tools program, the Company may deliver a written notice to MS requesting the right to distribute the Requested Files with its Tools as part of the Software licensed hereunder and MS agrees that it shall promptly respond to such requests in writing within thirty (30) days after they are received. A failure by Microsoft to respond in such a time frame shall not be grounds for Company to distribute the Requested Files pursuant to the terms of this Agreement. In its response to the notice from Company, MS agrees that it shall grant the Company’s request to distribute the Requested Files pursuant to the terms of this Agreement and that the Requested Files will be categorized in the same categories (e.g., as “Redistributables” or “Sample Code”) as such files are categorized in Visual Studio if each of the following conditions precedent have been satisfied: |
| (A) | MS has marketed or advertised the functionality represented by the Requested Files as Windows or BackOffice technology or has specifically required that the functionality represented by the Requested Files be distributed by application developers as part of an application product in order to comply with the “Windows compatible” logo certification program or its successor; |
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| (B) | The Requested Files are included in Visual Studio for the purpose of allowing a third party to build applications and not merely as part of the build of the underlying Visual Studio product; |
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| (C) | The Requested Files are of the same character as the files licensed hereunder (i.e., Object Code Files, Header and Library Files, Core Files, Sample Code, Documentation Sources, and Redistributables) and are not compilers, debuggers or other core development tool technologies; and |
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| (D) | MS has all necessary rights from third parties in the Requested Files to grant such distribution rights to Company. |
The Company’s right to distribute the Requested Files pursuant to the terms above shall be further conditioned upon and subject to the following restrictions: (1) if MS charges Visual Studio end users a license fee or royalty for the right to redistribute Requested Files, then Company agrees that it shall be required to charge its end user customers the same license fee or royalty and collect the same and pay it over to MS on not less than a quarterly basis (along with reasonable, auditable accounting records therefor), and (2) if MS later withdraws the Requested Files from a subsequent version of Visual Studio, then Company shall also withdraw such Requested Files from all new versions of its Tools that it commercially releases after the date that MS commercially releases such new version of Visual Studio, provided MS has provided Company with reasonable advance notice of its intention to withdraw the Requested Files from Visual Studio. For purposes of the previous sentence, notice at least ninety (90) days prior to the date that Company commercially releases its updated Tool shall be deemed “reasonable.” |
12. The words “and Windows Platform SDK” shall be inserted between the words “Software” and “that” in the second line of Section 5(b). |
13. Section 5(c) of the Agreement is hereby amended and restated in its entirety as follows: |
The initial delivery of the Software pursuant to Section 5(a) is hereby deemed accepted by COMPANY. COMPANY shall be deemed to have accepted all Updates and beta versions of the Software upon receipt by COMPANY. |
14. Section 7(a) of this Agreement is hereby amended and restated in its entirety as follows: |
3 |
Provided this Agreement has been properly executed by authorized representatives of COMPANY and MS, the term of this Agreement shall be 5 years from the Effective Date. |
15. Exhibit C of the Agreement are hereby amended to include the files described in the attached, Amended Exhibit C. |
16. This Amendment shall amend, modify and supersede, to the extent of any inconsistencies, the provisions of the Agreement. Except as expressly affected by this Amendment, the Agreement shall remain in full force and effect. |
IN WITNESS WHEREOF, the parties have executed this Amendment to the Agreement as of the date set forth above. All signed copies of this Amendment to the Agreement shall be deemed originals. |
| MICROSOFT CORPORATION | INPRISE CORPORATION | |||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇ | /s/ ▇▇▇ ▇. ▇▇▇▇▇ | |||
| (Sign) | (Sign) | |||
| ▇▇▇▇ ▇▇▇▇▇▇ | ▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name (Print) | Name (Print) | |||
| Group Vice President | CFO | |||
| Title | Title | |||
| June 1, 1999 | 7 June 1999 | |||
| Date | Date | |||
4 |
AMENDED EXHIBIT C
The following are hereby added to Exhibit C of the Open Tools Agreement between Inprise and Microsoft dated as of March 2, 1999 (Headers and Libraries): |
AdoDef.h
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AccCtrl.h
|
1 |
AsptIb.h
|
2 |
ChanMgr.h
|
3 |
CustCntI.h
|
4 |
dxfile.h
|
5 |
gl.h
|
6 |
IPHlpApi.h
|
7 |
MAPIForm.h
|
8 |
MSDaosp.h
|
9 |
NTVerP.h
|
10 |
protocol.h
|
11 |
rtutils.h
|
12 |
SqlOleDb.h
|
13 |
tpstart.h
|
14 |
WbemGlue.h
|
15 |
WPTypes.h
|
in \mssdk\lib |
AcIUI.Lib
|
16 |
Dbcs.Lib
|
17 |
MQRT.Lib
|
18 |
ScrnSavW.Lib
|
Files added as of June 7, 1999: |
\mssdk\include\ads.odl |
19 |
\mssdk\incIude\advpub.h
|
20 |