The following terms and conditions ("License") are incorporated by reference into that certain Technology License and Distribution Agreement ("TLDA") between SUN and Licensee of even date herewith. In the case of any inconsistency between the terms of this Agreement and the TLDA, the terms of the TLDA shall apply. Terms not otherwise defined in this Agreement shall have the meaning given such terms in the TLDA. The parties agree that:
1.1 "Branded Product" means all online software or tangible copies or units of any version of Licensee's Products being distributed in association with the Compatibility Logo.
1.2 "Compatibility Logo" means the Java-compatible logo supplied by SUN to Licensee from time-to-time.
1.3 "Products" means the "Products," as defined in the TLDA.
2. GRANT OF LICENSE
SUN grants to Licensee a non-exclusive, non-transferable, personal, license to use the Compatibility Logo ("License") as provided herein with respect to each of the Products that fully meet the certification requirements of Section 3. Licensee is granted no other right, title, or license to the Compatibility Logo or any other SUN trademark, and is specifically granted no right or license to sublicense the Compatibility Logo or any other SUN trademarks; provided, that this License shall apply and pass through to Licensee's distributors who distribute Licensee's Products as transferred by Licensee (i.e., without any modifications to the Product, product packaging, documentation or other materials) ("Distributors"). Licensee shall enforce the terms of the License with Distributors. SUN shall be entitled to enforce the terms of this License directly against any Distributor in the event Licensee fails to do so. All subsequent references herein to "Licensee" shall include and apply to "Distributors."
This License applies only to versions of Licensee's Products that have successfully passed the Java Test Suites made available by SUN to Licensee pursuant to the TLDA, and which otherwise fully comply with all other compatibility and certification requirements of the TLDA. Upon thirty (30) days written notice by SUN no more than two (2) times per calendar year, Licensee shall permit SUN to inspect and test any Branded Products at a mutually-agreeable location to ensure that they meet the compatibility requirements of the TLDA. Upon request by SUN, Licensee shall promptly make any modifications to any version of a Branded Product necessary for it to meet such compatibility requirements, taking into account the size of Licensee's organization, the nature of the Product, and the number of units in the retail channel.
4. LOGO AND TRADEMARK USAGE
Licensee agrees that during the Term of the TLDA, it shall display the Compatibility Logo:
(a) On external product packaging for the following Products sold through the retail channel: (i) All of Licensee's development tool Products (e.g., Microsoft Visual C++) and (ii) Microsoft Internet Explorer when shipped on a stand alone basis and not as an add-on product to another Licensee product or service or part of a bundle with another Licensee product or service.
(b) On external product packaging for any other of Licensee's Products sold through the retail channel if the Technology is described on such external product packaging; and
(c) In written end-user documentation for Licensee's Products that describes the Technology;
(d) In on-line versions of end-user documentation for Licensee's Products that describes the Technology.
Licensee agrees that with respect to such uses, it shall use only the Compatibility Logo artwork provided by SUN. The parties understand and agree that Licensee shall not display the Compatibility Logo more prominently or larger than Licensee's company name/logo and product name/logo, wherever displayed. SUN agrees that under no circumstances shall Licensee be obligated to display the Compatibility Logo on product packaging for Microsoft Windows 3.x, Microsoft Windows 95, Microsoft Windows NT, or any new versions, upgrades or successors to such Products, except with respect to Section 4(b), above.
Licensee shall comply with the current versions of the Sun Trademark & Logo Policies [http://java.sun.com/tm_guidelines.html], including but not limited to using the Java mark as an adjective followed by generic descriptors, marking the Java mark with a TM symbol, and attributing the Java mark as a trademark of Sun Microsystems, Inc. in a legend on packaging, splashscreens, web page, and other collateral and materials; provided, that Licensee's adherence to the foregoing requirements shall be to the extent that such requirements are consistent with Licensee's general trademark practices as to third party trademarks, as modified from time to time, and as otherwise provided in this Agreement. Nothing herein shall circumscribe Licensee's right to make fair, referential, comparative, descriptive or other references as permitted by applicable law.
5. PROTECTION OF TRADEMARKS AND LOGOS
SUN is the sole owner of the Compatibility Logo and all goodwill associated therewith. Licensee's use of the Compatibility Logo inures solely to the benefit of SUN. Licensee shall not knowingly and intentionally do anything that might harm the reputation or goodwill of the Compatibility Logo. Licensee shall not challenge SUN's rights in or attempt to register the Compatibility Logo. Licensee shall take no action inconsistent with SUN's rights in the Compatibility Logo. If at any time Licensee acquires any rights in, or registrations or applications for, the Compatibility Logo by operation of law or otherwise, it will immediately upon request by SUN and at no expense to SUN, assign such rights, registrations, or applications to SUN, along with any and all associated goodwill. SUN may at its option commence, prosecute or defend any action or claim concerning the Compatibility Logo in the name of SUN or Licensee, or join Licensee as a party thereto. SUN shall have the right to control any such litigation. Licensee shall not commence any action regarding the Compatibility Logo. SUN shall reimburse Licensee for the reasonable costs associated with providing such assistance, except to the extent that any such costs result from a breach of the License by Licensee. Notwithstanding any other provision of this Agreement, if a court or administrative body of competent jurisdiction rules that the Compatibility Logo or some constituent element is not protectable or is otherwise available for a party other than SUN to use, Licensee shall either not be circumscribed to any greater extent than such third party or shall be permitted to use the Compatibility Logo or its constituent element as permitted by such court of administrative body ruling.
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