Been reading this, and with all due respect, the right answer has not been given. As a member of Microsoft's System Builder program, I have access to the official terms and conditions of OEM software distribution directly from Microsoft. In short, before January 1, 2001, MS OEM software and hardware had to be issued and preloaded with a complete system. After January 1, 2001 all that needs to be sold with the software is any non-peripheral piece of hardware. This could include a modem, network card, memory, processor, etc...
The key sentence in the agreement is
"MS grants to you a non-exclusive right to distribute each Software Unit, provided it is distributed accompanied with either a fully assembled computer system or non-peripheral computer hardware component" The key word here is "either."
Here is the complete agreement for everyone's records:
1. AUTHORIZED DISTRIBUTION AND ACCEPTANCE
PLEASE READ THIS AGREEMENT CAREFULLY. DISTRIBUTION OF INDIVIDUAL SOFTWARE UNITS (DEFINED BELOW) OR MICROSOFT HARDWARE CONTAINED IN THIS PACKAGE IS NOT AUTHORIZED UNLESS YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU ACCEPT THE AGREEMENT WHEN YOU OPEN THIS PACKAGE! SOFTWARE UNITS OR MICROSOFT HARDWARE CANNOT BE RETURNED AFTER THIS PACKAGE IS OPENED.
2. PARTIES
This agreement is between Microsoft Licensing, Inc. (“MS”), a Nevada, U.S.A. Corporation and you, provided that you are an original equipment manufacturer, assembler, re-assembler or software pre-installer of computer hardware systems (“System Builder”). If you are not a System Builder and if you do not elect to accept all terms of this agreement by opening this package, you should promptly return the unopened package to the distributor from whom you obtained it. This agreement cannot be accepted by any person or entity other than a System Builder.
3. DISTRIBUTION LICENSE ONLY
This is a limited license to distribute the Software Units or Microsoft hardware with the associated components and documentation enclosed in each Software Unit or with each hardware item in this package (including, without limitation, a Certificate of Authenticity label as described in section 9). Software Unit means any one of the software programs in this package along with its associated components and documentation (including, without limitation, manuals, Certificates of Authenticity and media).
4. SOFTWARE DISTRIBUTION
4.1. If the enclosed Software Unit includes a Microsoft desktop operating system program, MS grants to you a non-exclusive right to distribute each Software Unit, provided it is distributed accompanied with either a fully assembled computer system or non-peripheral computer hardware component. A fully assembled computer system shall consist of at least a central processing unit, a motherboard, a hard drive, a power supply and a case.
4.2. If the enclosed Software Unit includes a Microsoft application or server program, MS grants to you a non-exclusive right to distribute each Software Unit, provided it is distributed to the end user accompanied only with a fully assembled computer system.
4.3. Each Software Unit may only be distributed to an end user pursuant to the end user license agreement that accompanies the Software Unit.
5. HARDWARE DISTRIBUTION
If this package contains Microsoft hardware, you may only distribute such hardware with a fully assembled computer system or other non-Microsoft computer hardware component. If you distribute Microsoft hardware included in this package with a fully assembled computer system, you must preinstall the associated software drivers and programs provided in this package for such hardware, if any, on the hard drive of the fully assembled computer system. If any hardware distributed to you is Microsoft hardware, it has been or will be at the time of shipment certified as a Class B computing device pursuant to the rules of the U.S.A. Federal Communications Commission (“FCC Rules”). Except as expressly set forth in the preceding sentence, neither MS, its affiliates nor its distributors or suppliers makes any warranty regarding compliance of such hardware with any FCC Rules or any other federal, state or local laws or regulations, or the laws or regulations of any non-U.S. jurisdiction, relating to computing devices or items sold to the public. You have the sole responsibility to test and certify the hardware in conjunction with other equipment that you manufacture, distribute or sell.
6. OTHER SYSTEM BUILDER DISTRIBUTION
MS grants to you a non-exclusive right to distribute the Software Units or Microsoft hardware in this package to another System Builder only if that System Builder accepts all the terms of this agreement. To facilitate such acceptance, a digital copy of this agreement is posted at
www.microsoft.com/oem/. Upon demand by MS, if you distribute Software Units or Microsoft hardware to a System Builder you shall provide to MS competent proof that the System Builder accepted all of the terms and conditions of this agreement.
7. NO REVERSE ENGINEERING
You may not reverse engineer, decompile or disassemble any Software Unit or Microsoft hardware except as permitted by applicable law without the possibility of contractual waiver.
8. PREINSTALLATION REQUIREMENT
If the Software Unit includes a Microsoft desktop operating system program and you distribute it with a fully assembled computer system, you must preinstall the Microsoft desktop operating system program on the hard drive of the fully assembled computer system, with such preinstallation limited to one copy of each software program per Software Unit in this package, if any. Regardless of the type of Microsoft software program included with the Software Unit, if you preinstall the software program on a fully-assembled computer system, you must use the preinstallation software or tools provided in this package, if any. MS grants to you the non-exclusive right to use the preinstallation software or tools provided in this package, if any. You may not distribute, copy or modify the separate OEM Preinstallation Kit CD or OPK instructions provided in this package, if any. For updates regarding OEM preinstallation tools and support, see
www.microsoft.com/oem/.
9. PLACEMENT OF CERTIFICATE OF AUTHENTICITY (COA) LABEL
If the Software Unit includes a Microsoft desktop operating system program, the System Builder who supplies the Software Unit with the fully assembled computer system must remove the COA label backing and adhere the COA label to the exterior of the fully assembled computer system case in an easily accessible location.
10. END USER SUPPORT
The System Builder who supplies the Software Unit with the fully assembled computer system must provide end user support for the Software Unit. Such support to the end user must be at least as favorable as the terms under which the System Builder provides end user support for any fully assembled computer system. The System Builder providing the support must place its support phone number conspicuously in the fully assembled computer system help files or end user documentation materials.
11. DISCLAIMER OF ALL WARRANTIES
MS, its affiliates and their distributors (and their suppliers) disclaim all warranties and duties of any kind whatsoever, whether express or implied, including, without limitation, those for defects in media or materials, non-infringement, interference of enjoyment, title, fitness for a particular purpose, merchantability, workmanlike effort and/or lack of negligence.
12. LIMITATION OF LIABILITY
You agree that MS, its affiliates and their distributors (and their suppliers) will not be liable for any damages under this agreement or any transaction contemplated herein, including for any consequential, incidental, indirect, economic or punitive damages even if MS, its affiliates, distributors (or their suppliers) have been advised of the possibility of such damages. You acknowledge that this limitation of liability shall apply even if any remedies fail of their essential purpose.
13. TRADEMARK RIGHTS
You agree to comply with all trademark guidelines found at
www.microsoft.com/trademarks/.
14. EXPORT ONLY IN ACCORDANCE WITH LAWS OF USA
You acknowledge that the Software Units and Microsoft hardware are subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software Units and Microsoft hardware, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. For additional information, see
www.microsoft.com/exporting/.
15. ANTI-PIRACY AND COUNTERFEITING
IT IS AN INFRINGEMENT OF MICROSOFT INTELLECTUAL PROPERTY RIGHTS TO DISTRIBUTE, INSTALL, COPY, MODIFY OR DISPLAY MICROSOFT SOFTWARE PROGRAMS OR HARDWARE EXCEPT AS AUTHORIZED BY MS OR ITS AFFILIATES. IT IS UNLAWFUL TO COUNTERFEIT OR DISTRIBUTE, COPY, OR USE COUNTERFEIT COPIES OF ANY MICROSOFT SOFTWARE OR HARDWARE. You will not distribute, install, copy, modify or display any Microsoft software or hardware, or any component thereof, that has been, or which you suspect has been, manufactured, assembled and/or distributed in a manner not authorized by MS or its affiliates.
16. MISCELLANEOUS
16.1. You may not advertise or price any Software Unit separately from its accompanying fully assembled computer system or computer hardware. Except as granted in this agreement, you may not use, run, distribute, copy, modify, display, repackage or reassemble any Software Units or Microsoft hardware or any part of them.
16.2. MS reserves all rights not expressly granted in this agreement.
16.3. Any Software Units provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere in this Agreement. All Software Units provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with “Restricted Rights” as provided for in 48 CFR 52.227-14 (June 1987) or 48 CFR 252.227-7013 (October 1988), as applicable. The System Builder is responsible for ensuring that Software Units are marked with the “Restricted Rights Notice” or “Restricted Rights Legend,” as required. All rights not expressly granted are reserved.
16.4. If a court of competent jurisdiction holds any provision of this agreement to be unenforceable, the remaining provisions will remain in full force and effect.
16.5. The laws of the State of Washington, U.S.A., govern this agreement. You consent to the jurisdiction of the state and federal courts sitting in the State of Washington, U.S.A.
16.6. This agreement does not establish a franchise, partnership, joint venture, agency, fiduciary relationship or contract of employment between you and MS.
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