writes "In all the analysis of the recently-announced Novell / Microsoft deal, I haven't seen any mention of the applicability clause in the Novell FAQ:
While the rest of the answers on that page are extensive, even long-winded, that simple statement really stands out. And if you consider Microsoft's position with regard to refunds — ie: claiming that the OEMs are their (Microsoft's) customers — it seems they haven't really answered the question at all.
Q. Does this covenant apply to original equipment manufacturers (OEMs) that buy SUSE Linux Enterprise and preload or resell it?
The covenant applies to end customers of Novell products.
So without a clear definition of "end customers of Novell products" we don't really know who Microsoft is promising not to sue.
Does anyone with a real legal background agree they might have backed themselves into a corner?"
- If it's OEMs, as their (no-)refund policy suggests, then this indemnification is worthless to end users.
- If it applies to end users, then their position on refunds loses its legal foundation.