Microsoft Services Provider Agreement Number:
License Agreement (Microsoft will complete) 9055430
This Microsoft Services Provider License Agreement ("Agreement") is between the
entities identified below. YOU MUST BE A MICROSOFT CERTIFIED PARTNER IN ORDER TO
ENTER INTO THIS AGREEMENT. PLEASE PROVIDE YOUR MICROSOFT CERTIFIED PARTNER
NUMBER BELOW.
This Agreement and attached documents must be sent to Microsoft (as specified
below) for processing and approval. If the Agreement is approved, Microsoft will
sign the Agreement and send you a fully executed original. The Effective Date of
this Agreement will be the date Microsoft signs the Agreement after execution by
you as specified below. Each party agrees to notify the other in accordance with
Section 16(d) if the information below changes during the Term.
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Customer Name: Name of contracting Microsoft Affiliate:
INTERLAND, INC. MSLI, GP
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Street Address and/or post office box: Street Address and/or post office box:
303 PEACHTREE CENTER AVE. 6100 NELL ROAD, SUITE 210
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City and State / Province: City and State / Province:
ATLANTA, GA RENO, NV
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Country and Postal Code: Country and Postal Code:
30303 USA 89511-1137
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Contact Name: Microsoft Account Manager Name, Location and Email
NICHOLAS FARSI Address:
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Phone Number: Phone Number.
404-260-2550 (775) 823-5600
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Fax Number: Fax Number:
404-260-2721 (775) 826-7287
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E-Mail Address: E-Mail Address:
NFARSI@INTERLAND.COM SELQUEST@MICROSOFT.COM
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For the Attention of: For the Attention of:
CHIEF INFORMATION OFFICER VOLUME LICENSING, DEPT. 551
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Microsoft Certified Partner Agreement Number.
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Accounts Payable Contact Name, Phone Number and Email Address:
TODD WILKINS
TWILKINS@INTERLAND.COM
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CUSTOMER NOTICES INFORMATION (IF DIFFERENT FROM ABOVE): ALL NOTICES MUST ALSO BE
SENT TO:
Customer Name, Street Address and/or post office box, City Microsoft Corporation, Law and Corporate Affairs
and State / Province, Country and Postal Code: One Microsoft Way
GENERAL COUNSEL Redmond, Washington USA 98052
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Fax Number: Fax Number:
404-260-2721 (425) 936-7329
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For the Attention of: For the Attention of:
LCA- PDM / SPLA Program Attorney
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This Agreement consists of this cover page, the enclosed Terms and Conditions
(including the Exhibits), the SPUR, the Price List, and any addenda, amendments
and/or Affiliate Agreements entered into under this Agreement. These documents
form the entire agreement between you and Microsoft and supersede all prior and
contemporaneous communications, agreements or contracts, whether oral or
written, concerning the subject matter hereof. By signing this Agreement, you
acknowledge that you have access to the Internet and have the capability to send
and receive electronic mail ("e-mail").
[COMPANY] INTERLAND, INC. MSLI, GP
By (sign): /s/ Nicholas Farsi By (sign): /s/ Carol Marshall
---------------------------------- ----------------------------------
Name (print): Nicholas Farsi Name (print): Carol Marshall
------------------------------- -------------------------------
Title: Sup., CIO Title: Contract Administrator
-------------------------------------- -------------------------------------
Date: 11/25/02 Effective Date: 11/15/2002
--------------------------------------- ----------------------------
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TERMS AND CONDITIONS
1. SCOPE OF AGREEMENT. This Agreement sets forth the terms upon which you may
license Microsoft Software Products on a non-perpetual basis in order to
provide Software Services to your Customers. This Agreement is not intended
to, and does not, modify or restrict your use of Microsoft software
products that you license solely for internal use under other license
agreements with Microsoft (e.g., Open, Select or Enterprise license
agreements).
2. DEFINITIONS. In this Agreement, "you" means the legal entity that has
entered into this Agreement with Microsoft, including any Affiliates to
whom you have granted rights under this Agreement; and "Microsoft" means
the Microsoft company which has signed this Agreement and its Affiliates.
Microsoft and you may each be referred to individually as a "party" or
collectively as the "parties" in this Agreement. In addition, the following
terms are defined:
"AFFILIATE" means a legal entity that (a) owns and controls a party,
directly or indirectly, or (b) is owned and controlled, directly or
indirectly, by a party, or (c) is directly or indirectly under common
ownership and control with a party.
"AFFILIATE AGREEMENT" means the agreement contained in Exhibit A to this
Agreement.
"CLIENT SOFTWARE" means software that is installed on a Device, which
allows the Device to access or use the services or functionality provided
by Server Software.
"CONFIDENTIAL INFORMATION" means these Terms and Conditions as negotiated
between the parties, the Price List, all addenda, amendments and/or
Affiliate Agreements entered into under this Agreement, and any items of
information provided by a party that the other party is required to treat
as confidential under the terms of this Agreement. Confidential Information
does not include information which: (a) the recipient developed
independently; (b) the recipient rightfully knew before receiving it under
this Agreement; or (c) is or subsequently becomes publicly available or is
received from another source, in both cases other than by a breach of an
obligation of confidentiality.
"CUSTOMER" means an individual or legal entity that obtains Software
Services from you, either directly from you or indirectly through a
Reseller.
"CUSTOMER AGREEMENT" means the contract between you and a Customer under
which you provide Software Services to such Customer; or, in the case of a
Reseller, the contract between the Reseller and the Customer under which
the Reseller provides Software Services obtained from you to such Customer.
"CUSTOMER LICENSE TERMS" means the license terms contained in Exhibit B to
this Agreement.
"DEVICE" means a computer, workstation, terminal, handheld PC, pager,
telephone, personal digital assistant, "smart phone, or other electronic
device.
"MEDIA" means a CD, diskette or other tangible storage media containing one
or more of the Software Products.
"MICROSOFT CERTIFIED PARTNER" means an individual or other legal entity
that participates in the Microsoft Certified Partner Program by entering
into a Microsoft Certified Partner Agreement.
"MICROSOFT DESIGNATED WEB SITE" means one or more Microsoft Internet sites
that support Microsoft's licensing business. Microsoft will provide you
with the Internet addresses (URLs), User IDs and passwords for each
applicable Microsoft Designated Web Site. You will treat as Confidential
Information any User IDs and passwords provided to you under this
Agreement.
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<PAGE>
"MICROSOFT WORLDWIDE FULFILLMENT" or "WWF" means a Microsoft-authorized
distributor of Media containing Software Products and Related Printed
Materials.
"MOET" means the Microsoft Order Entry Tool. MOET `s an online tool that
enables Monthly Use Reports to be submitted electronically to Microsoft.
MOET is accessed through a Microsoft Designated Web Site that Microsoft
will identify to you.
"MONTHLY USE REPORT" means the software use report that you must submit
each month via MOET or other electronic format specified by Microsoft.
"OEM" means an original equipment manufacturer that pre-installs Microsoft
operating system Software Products on a computer system purchased by you.
"PL" means a processor license, as further described in the SPUR.
"PRICE LIST" means the Microsoft document containing the per-month unit
prices for each of the Software Products that may be licensed under this
Agreement. The Price List is published periodically on a Microsoft
Designated Web Site that Microsoft will identify to you.
"REDISTRIBUTION SOFTWARE" means software that may be installed on a Device
and which may be used, modified, reproduced and/or redistributed by a
Customer without separate payment to Microsoft, such as "sample,"
"redistributable," and/or software development ("SDK") software code and
tools.
"RELATED PRINTED MATERIALS" means the copyrighted Microsoft guides, manuals
or other printed materials describing or explaining any of the Software
Products.
"RESELLER" means a legal entity to which you grant rights under Section
3(g) to redistribute, to its Customers, Software Services provided by you.
"SAL" means a subscriber access license, as further described in the SPUR.
"SERVER" means a shared computer in a network, which computer provides
resources, services, or information to other computers is the network.
"SERVER SOFTWARE" means software that is installed on, and provides
services or functionality on, a Server.
"SERVICES PROVIDER" means a business entity that uses one or more Software
Products licensed under this Agreement to provide Software Services.
"SERVICES PROVIDER USE RIGHTS" or "SPUR" means the Microsoft document
containing the use rights specific to each version of the Software Products
that may be licensed under this Agreement.
"SOFTWARE PRODUCTS" means the Microsoft software products identified in the
Price List and the SPUR that you may license under this Agreement to
provide Software Services to Customers. A Software Product includes Server
Software and may also include Client Software and/or Redistribution
Software, depending on the product. The term Software Products also
includes any software provided to you under this Agreement that updates,
fixes, patches or supplements the original Software Products.
"SOFTWARE SERVICES" means services that make available, display, run,
access, or otherwise interact with the functionality of the Software
Products, which you provide to Users from one or more data centers through
the Internet or a private network on a rental or subscription basis.
"TERM" means the term of this Agreement, which is defined in Section 10(a),
including any extension for particular Customer Agreements as described in
Section 10(b).
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<PAGE>
"USER" means an individual who is authorized by you to access and/or use a
Software Product in the form of Software Services.
"ZERO USE" means you, your Affiliates (if any) and Resellers (if any) did
not use any of the Software Products to provide Software Services during
the previous calendar month.
3. USE OF THE SOFTWARE PRODUCTS.
(a) Use and Ownership. Subject to these Terms and Conditions (including
but not limited to paragraphs (b) through (o) below) and the use
rights contained in the SPUR, Microsoft grants you a non-perpetual,
non-exclusive, terminable, non-transferable, worldwide and limited
right during the Term to copy, install, access, display, run,
distribute, make available or otherwise interact with the
functionality of the Software Products in order to provide Software
Services. This Agreement does not transfer any ownership rights in any
Software Product and Microsoft reserves all rights not expressly
granted. This license will automatically terminate upon expiration or
termination of this Agreement.
(b) Restrictions on Use. You may not:
(1) rent, lease, encumber, pledge, lend, copy, make available or
distribute the Software Products to any third party, except as
expressly permitted by this Agreement;
(2) separate the components of a Software Product made up of multiple
components by installing them on different Servers, or by
upgrading or downgrading them at different times, except as
expressly permitted in the SPUR;
(3) remove, modify or obscure any copyright, trademark or other
proprietary rights notices that appear on the Software Products
or that appear during use of the Software Products;
(4) reverse engineer, decompile, or disassemble the Software
Products, except and only to the extent that such activity is
expressly permitted by applicable law notwithstanding this
limitation; and
(5) provide Software Services to the U.S. Government under any
agreement resulting from a solicitation issued prior to December
1, 1995.
(c) Obtaining Software Product Media and Related Printed Materials. You
may order Media containing the Software Products directly from
Microsoft Worldwide Fulfillment ("WWF"). You may also obtain Microsoft
operating system Software Products from an OEM that has preinstalled
such software on a computer system purchased by you. If you place an
order for Media with WWF, your order will be limited, on a per-order
basis, to ten (10) copies of Media containing the Software Product(s).
If necessary or appropriate, Microsoft will provide you with specific
and unique product activation/copy protection bypass codes in order to
permit installation, re-installation and copying of the Software
Products; and you will treat as Confidential Information any product
activation/copy protection bypass codes that are provided to you. You
may also order, on a per-Customer basis, up to ten (10) copies of
Related Printed Materials from WWF for each Software Product used to
provide Software Services. WWF will invoice you for all orders. WWF
may request additional information and verification from you before
fulfilling any orders for Media and Related Printed Materials. Orders
will only be shipped to the address you specified in this Agreement.
Contact information for WWF will be provided at the time this
Agreement is signed by Microsoft and may be updated by Microsoft from
time-to-time. Microsoft may change the process for ordering Media and
Related Printed Materials upon thirty (30) days prior written notice.
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<PAGE>
(d) Applicability of License Terms Contained in End-User License
Agreement. If you obtain Software Products from WWF, the terms of this
Agreement permanently and irrevocably supersede the terms of any end
user license agreement ("EULA") which may be presented in electronic
form during installation of the Software Products. If you obtain any
Microsoft operating system Software Product from an OEM, unless the
SPUR specifically states otherwise, the terms of this Agreement will
supersede the terms of any EULA that accompanies such Software Product
or which may be presented in electronic form during installation of
such Software Product, but only when such Software Product is used by
you to provide Software Services under this Agreement. If any
additional software is provided to you with the Software Products, and
such additional software comes with a separate EULA, then such
software is licensed to you under the terms of the EULA and not under
this Agreement.
(e) Internal Use. You may use Software Products licensed under this
Agreement for your internal use, so long as: (1) you report such use
in your Monthly Use Report; and, (2) such use is less than fifty
percent (50%) of the total use of such Software Products by all of
your Customers (calculated on a product-by-product basis) each month.
(f) Copying and Distribution of Software Products and Related Printed
Materials. For purposes of installation and back-up only, you may make
one (1) copy of the Media containing the Software Products for each of
your data centers. You must include on the backup copies all
copyright, trademark and proprietary notices contained in or on the
Software Products. You may not distribute any Media containing Server
Software to any Customer or to any other third party. So long as your
Customer Agreements comply with Section 8(b) below, you may distribute
Media containing only Client Software and/or Redistribution Software
to your Customers. You may not copy any Related Printed Materials. If
a Software Product contains documentation that is provided only in
electronic form, you may print one (1) copy of such electronic
documentation for your own use.
(g) Distribution of Software Services Through Resellers. You may resell
and distribute your Software Services through one or more Resellers,
subject to the terms of this Section 3(g) and the other terms of this
Agreement.
(1) Identification of Resellers. In connection with any compliance
verification under Section 9(b), you will provide Microsoft with
the name and address of your Reseller(s).
(2) Limited Right. If you permit a Reseller to distribute your
Software Services, your agreement with the Reseller must state
that further distribution of the services other than to Customers
is not permitted.
(3) Copying and Distribution of Software Products by Resellers. Your
Reseller's Customer Agreements must comply with Section 8(a)
below. So long as your Reseller's Customer Agreements comply with
Sections 8(b) and 8(e) below, you may authorize the Reseller to
distribute Media containing only Client Software and/or
Redistribution Software to its Customers. If you distribute
Client Software and/or Redistribution Software to a Reseller, you
will be legally responsible to Microsoft for any unauthorized
installation, use, copying, access or distribution of such Client
Software and/or Redistribution Software by such Reseller.
(4) Reporting Use. You are responsible for consolidating all
information regarding the use of the Software Products (in the
form of Software Services) by your Reseller's Customers and
reporting such information to Microsoft in your Monthly Use
Report.
(5) Termination of Right. Any termination or expiration of this
Agreement will automatically terminate any rights granted under
this Section 3(g).
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<PAGE>
(h) Affiliates. You may grant to your Affiliates the rights granted
to you under this Agreement, so long as each Affiliate: (1)
executes an Affiliate Agreement in substantially similar form to
the agreement contained in Exhibit A prior to exercising any
rights under this Agreement; and (2) remains an Affiliate as
defined herein. You will keep on file all executed Affiliate
Agreements and deliver them to Microsoft upon request. You
unconditionally and irrevocably guarantee the Affiliate's
compliance with the terms of this Agreement; however, your
Affiliates do not submit Monthly Use Reports to Microsoft. You
are responsible for consolidating all information regarding the
use of the Software Products by your Affiliates and reporting
such information to Microsoft in your Monthly Use Reports. You
and your Affiliate will be jointly and severally liable for any
breach of the terms of this Agreement or the SPUR by such
Affiliate.
(i) Customer Demonstrations. You may permit your employees and
authorized persons acting on your behalf to demonstrate your
Software Services to prospective Customers, so long as the use
rights for the Software Product(s) that you want to demonstrate
(contained in the SPUR) do not restrict such use. You do not need
to report demonstrations of the Software Products in your Monthly
Use Report; however, you may not have more than fifty (50) active
User IDs for demonstration purposes. You will keep accurate
records of all demonstrations, including the name of the
prospective Customer and the number of User IDs involved in the
demonstration; and you will make such records available for
inspection in connection with any compliance verification
conducted under Section 9(b).
(j) Customer Evaluations. You may use the Software Products to
provide Software Services on a trial basis to your Customers, for
up to thirty (30) days per Customer, solely for the purpose of
evaluation of such Software Services by such Customers, so long
as: (1) the use rights for the Software Product(s) (contained in
the SPUR) do not restrict such use; (2) the Customer Agreement
between you and the Customer meets the requirements of Section 8
below; and (3) you do not charge or impose any fee on, or receive
any benefit from, the Customer in connection with evaluation of
the Software Services. You do not need to report evaluation use
of the Software Products in your Monthly Use Report. You will
keep accurate records of all Customer evaluations, including the
name and address of the prospective Customer and the total number
of User IDs involved in the evaluation; and you will make such
records available for inspection in connection with any
compliance verification conducted under Section 9(b).
(k) Evaluation and Testing of Software Products. You may install and
use the Software Products on Servers connected to your internal
network(s) for the purpose of internal testing and evaluation.
You do not need to report such use of the Software Products in
your Monthly Use Report. For Software Products commercially
released on or before the Effective Date, you may test and
evaluate such products for a period of ninety (90) days beginning
on the Effective Date. For Software Products released after the
Effective Date, you may test and evaluate such products for a
period of ninety (90) days beginning on the commercial release
date of such products.
(1) Data Center Outsourcing. Subject to the terms imposed in this
Section 3(l), you may install Server Software on Servers under
the day-to-day management and control of a third party
("Outsourcing Company") who performs data center management
services for you.
(1) Identification of Outsourcing Company. In connection with
any compliance verification under Section 9(b), you will
provide Microsoft with the name and address of the
Outsourcing Companies providing services to you.
(2) Scope of Use. You are responsible for all of your
obligations under this Agreement regardless of the physical
location of the Servers containing the Server Software. The
Outsourcing Company's access to and use of Server Software
is limited to performing data center administration, testing
and/or maintenance support services for you only. The
Outsourcing Company may not access or use the Server
Software for any other purpose. You will be legally
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<PAGE>
responsible to Microsoft for any unauthorized installation,
use, copying, access or distribution of the Server Software
by the Outsourcing Company.
(3) Data Center Inspection. In connection with any compliance
verification under Section 9(b) Microsoft may conduct a
reasonable inspection of all Servers that contain Server
Software at the Outsourcing Company's data center(s). Your
agreement with the Outsourcing Company must permit this
inspection by Microsoft. Any inspection will be conducted
during regular business hours at the Outsourcing Company's
facilities, with at least five (5) days prior notice, and in
such a manner as not to interfere unreasonably with the
operations of the Outsourcing Company.
(4) Copies of Software Products. Upon termination or expiration
of your agreement with an Outsourcing Company, you will use
all commercially reasonable efforts to: (i) remove alt
copies of Server Software installed on the Outsourcing
Company's Servers or otherwise render such Server Software
permanently unusable; and (ii) ensure that the Outsourcing
Company returns or destroys all copies of the Software
Products in its possession or under its control.
(m) Server Administration and Maintenance. You may authorize up to
twenty (20) employees or authorized persons acting on your behalf
per data center (including persons employed by an Outsourcing
Company performing services for you under Section 3(l) above) to
have access to and use the services or functionality of the
Software Products for the sole purpose of fisting, maintenance
and administration of the Software Products. You do not need to
report such use of the Software Products is your Monthly Use
Report.
(n) Use of Trademarks and Logos. This Agreement does not grant you
any rights to any Microsoft trademarks, logos or service marks.
You may make descriptive references to Microsoft's non-stylized
word marks in documentation, advertising, and marketing
materials, including web pages, according to Microsoft's standard
trademark guidelines (available for viewing at
www.microsoft.com/trademarks). You do not have permission to use
any Microsoft logo without a license from Microsoft. Microsoft
logo license information can be obtained from
http://www.microsoft.com/trademarks or by contacting Microsoft.
Microsoft's legal or equitable rights to protect its trademarks
against infringement, dilution, or other misuse are not
restricted by this Agreement.
(o) Compliance with License Requirements. You will inform your
employees, agents, and other individuals who have access to the
Software Products that the Software Products (1) are licensed by
Microsoft, (2) may only be used subject to the terms of this
Agreement, and (3) may not be copied, transferred or otherwise
used in violation of such terms. You will use all commercially
reasonable efforts to prevent any unauthorized distribution,
copying, use, or pirating of the Software Products.
4. SERVICES PROVIDER USE RIGHTS.
(a) Version Specific. Your use of any Software Product is subject to
the applicable use rights contained is the SPUR. The use rights
for the Software Products are version-specific. Once use rights
for a version of a Software Product are added to the SPUR,
Microsoft will not change the use rights for such version during
the Term. However, Microsoft may revise the SPUR during the Term
in order to add use rights for new Software Products, add use
tights for new versions of Software Products, remove Software
Products, or make non-material changes to the SPUR.
(b) Publication. The SPUR is published periodically on a Microsoft
Designated Web Site that Microsoft will identify to you.
Microsoft will publish revisions to the SPUR no later than the
first day of the month one (1) calendar month before the
effective date of the revised SPUR.
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<PAGE>
(c) Effective Date. The effective date of a revised SPUR will be
stated in the SPUR. The effective date will be at least one (1)
calendar month after the publication date as provided undo
Section 4(b) above. If a new Software Product (or new version of
a Software Product) is the subject of a SPUR revision, you may
begin to license the new Software Product on the effective date
of the new SPUR.
(d) Removal of Software Products from SPUR. You may continue to
license any Software Product that is removed from the SPUR if (1)
you were licensing the removed Software Product at the time of
its removal from the SPUR, and (2) Microsoft has not notified you
(in accordance with Section l6(d) below) that the Software
Product was removed from the SPUR due to an intellectual property
infringement claim or in accordance with a court or other
governmental order. The use rights applicable to any removed
Software Product will be those stated in the SPUR that was in
effect immediately prior to removal of the Software Product.
5. MONTHLY USE REPORTS.
(a) Reporting Use; Zero Use. You must report your use of the Software
Products each month of the Term by submitting either (1) a
Monthly Use Report through MOET or (2) a Zero Use report by
e-mail to the following e-mail address: selquest@microsoft.com.
Microsoft will provide you with details concerning the use of
MOET before this Agreement is approved by Microsoft. You will
provide all applicable information requested in the Monthly Use
Report, including but not limited to, the total number of SALs
and PLs required for each Software Product licensed by you during
the preceding calendar month. If you grant rights to any
Affiliates or to any Resellers under this Agreement, you must
incorporate and consolidate their use of the Software Products in
your Monthly Use Report.
A report of Zero Use, if applicable, must contain a statement
that you, your Affiliates (if any) and Resellers (if any) did not
use any of the Software Products to provide Software Services
during the previous calendar month.
(b) Submission; Failure to Submit. You must submit the Monthly Use
Report through MOET, or submit a Zero Use report by e-mail, no
later than fifteen days (15) days after the last day of the
calendar month covered by the report. A duly authorized
representative of your company must certify the Monthly Use
Report (or Zero Use report, if applicable) as accurate and
complete. The failure to timely submit a complete and accurate
Monthly Use Report each month (or Zero Use report, if applicable)
will be a breach of this Agreement under Section 10(c)(2). For
purposes of this Section 5 and Section 6(e) below, "timely" means
that Microsoft has received the report by the stated due date,
"accurate" means that you have correctly filled-in all reporting
fields in the report, and "complete" means that you have
filled-in all required reporting fields in the report.
(c) Modification of Reporting Structure. Microsoft may reasonably
revise the format of the Monthly Use Report submitted through
MOET from time-to-time, as well as specify another electronic
format and procedure for submitting Monthly Use Reports and/or
Zero Use reports. Microsoft will notify you of any reporting
changes by publishing the revised form or procedures on a
Microsoft Designated Web Site no later than the first day of the
month one (1) calendar month before the changes go into effect.
You will not be required to submit more than one (1) Monthly Use
Report per month.
(d) Final Monthly Use Report. Upon termination or expiration of this
Agreement, you will submit, within thirty (30) days, a final
Monthly Use Report (or Zero Use report, as applicable) covering
your use of the Software Products up to the date of termination
or expiration.
(e) Assistance With Reporting. Upon request, Microsoft will use
commercially reasonable efforts to assist you with reporting and
will work with you to facilitate the monthly reporting process.
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<PAGE>
(f) Use of Information. Microsoft will use information provided in a
Monthly Use Report only for revenue calculation, internal revenue
allocation, compliance, and billing purposes. Microsoft will
treat such information as Confidential Information.
6. PRICING; INVOICES; PAYMENT TERMS AND REBATES.
(a) Pricing and Invoices. Using the SAL and PL unit prices stated in
the Price List, Microsoft will invoice you monthly based upon the
number of SALs and PLs reported in your Monthly Use Report. Your
monthly invoice will include any internal use of the Software
Products as reported by you in your Monthly Use Report.
(b) Adding and Removing Software Products from the Price List.
Microsoft may periodically change the Price List by adding or
removing Software Products. Microsoft will publish revisions to
the Price List on a Microsoft Designated Web Site no later than
the first day of the month one (1) calendar month before the
effective date of the revised Price List. The continued licensing
of Software Products removed from the Price List is described in
Section 4(d).
(c) Pie Changes. Microsoft will not increase the prices stated in the
Price List until January 1, 2003. Starting on January 1, 2003,
Microsoft may increase the prices stated in the Price List once
per calendar year. Any price increase for a Software Product will
not exceed, on a percentage basis, any price increase for the
same Software Product for the same calendar year under the "No
Level" price level of Microsoft's Open licensing program or its
equivalent under any successor (to Open) licensing program.
Microsoft will not otherwise increase the prices stated in the
Price List during the calendar year. Microsoft will notify you of
any price changes by publishing a revised Price List on a
Microsoft Designated Web Site no later than December 1 in any
calendar year (commencing on December 1, 2002), and such changes
will become effective on January 1 of the following year.
(d) Payment Terms. All amounts payable by you under this Agreement
are due and owing thirty (30) days after the date of Microsoft's
invoice. If payment is not received by Microsoft by the due date
stated in the invoice, you may be assessed a finance charge
(accruing from the due date until payment is received) of one and
one-half percent (1.5%) of the invoice amount per month or the
legal maximum, whichever is less. You agree to pay all Microsoft
invoices regardless of whether you have received payment from
your Customers and/or Resellers. You will pay the full amount of
the invoice in U.S. Dollars (or Canadian Dollars if you are
located in Canada) by bank wire transfer or electronic funds
transfer through an Automated Clearing House ("ACH") with
electronic remittance detail attached. You will include the
Agreement number and the Microsoft invoice number, if any, on
each electronic payment. You may not withhold payment or make
deductions to any payment prior to the issuance of a credit by
Microsoft for rebates, billing errors or for any other
appropriate reasons.
Depending on your location, you will remit payment each month to
one of the following accounts (or such other account(s) as
Microsoft may specify in writing):
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[***] - CONFIDENTIAL TREATMENT REQUESTED
(All locations in the Americas except Canada): (Use only if you
are located in Canada):
[***] [***]
Remittance detail for wire transfers must also Remittance detail
for wire transfers must also be sent either by fax or e-mail: be
sent either by fax or e-mail:
Fax:(425)936-7329, Attention: Fax: (425) 936-7329, Attention:
Special Agreements Payments Special Agreements Payments
E-mail: spagpay@microsoft.com E-mail spagpay@microsoft.com
(e) Rebates. You may cam a semi-annual rebate from Microsoft of up to
[***] percent ([***]%) of the total amount stated in your monthly
invoices (the "Rebate Amount"). You may earn: (1) up to [***]
percent ([***]%) of the Rebate Amount for the timely, accurate
and complete submission of your Monthly Use Report; and (2) up to
[***] percent ([***]%) of the Rebate Amount for the timely
payment of your monthly invoice. Your entitlement to the Rebate
Amount will be measured on a month-to-month basis every six (6)
calendar months (i.e., January 1st to June 30th, and July 1st to
December 31st, each a "Rebate Period"). If the Effective Date of
this Agreement falls within a Rebate Period, you may earn a
prorated rebate based upon the number of whole months falling
within the Rebate Period.
(1) Payment. If you earn all or a portion of the Rebate Amount
during a Rebate Period, it will be paid to you in the form
of an invoice credit that will be applied to the monthly
invoice sent to you three (3) months after the end of the
applicable Rebate Period (e.g., the October invoice for the
January - June Rebate Period). If you are entitled to
receive a rebate following the end of the Term, Microsoft
will apply the rebate to your final invoice. However, if you
are in breach of any of the terms of this Agreement at the
time of issuance of a rebate, your rebate will be withheld
until you cure the breach; and, if you fail to cure the
breach in accordance with Section 10(c)(2), you will forfeit
the rebate.
(2) Rebate Disputes. You must notify Microsoft of any issues
regarding the amount of the Rebate Amount issued (or not
issued) to you no later than sixty (60) days following your
receipt (or failure to receive) a credit for the applicable
Rebate Period. You waive any and all right to dispute the
amount of a credit if you do not notify Microsoft within
such sixty (60) day period.
(f) Taxes. The unit prices stated in the Price List do not include
any applicable taxes (including, without limitation, income,
property, franchise, gross receipts, goods and services, excise,
sales, use, and value added tams), duties, fees, tariffs, or
other governmental charges or expenses (individually and
collectively "Taxes").
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(1) Liability for Taxes. You will pay all applicable Taxes (and
any penalties, interest, or other additions to such Taxes)
now or hereafter imposed, levied or assessed by a duly
constituted and authorized taxing authority on the Software
Products licensed by you under this Agreement or on any
transactions arising out of or related to yew use of the
Software Products (including, but not limited to, the
Software Services provided by you). "Taxes" do not include
taxes that Microsoft is obligated to pay under applicable
law that are based on the net worth, capital, property, or
income of Microsoft or taxes impaled by reason of
Microsoft's doing business or being incorporated in a
jurisdiction.
(2) Billing and Collection. If Microsoft is required or
permitted to collect Taxes from you under applicable law,
and if such Taxes are your responsibility under this
Agreement, then Microsoft will include the amount of such
Taxes in your monthly invoice ("Collected Taxes"). Upon
request, Microsoft will provide you with tax receipts or
other evidence indicating that Microsoft has remitted the
Collected Taxes to the appropriate taxing authority.
If you provide a tax exemption certificate to Microsoft that
is acceptable to Microsoft and to the appropriate taxing
authority (including without limitation a resale
certificate), then, after the date upon which such
certificate is received in proper form, Microsoft will not
collect the Taxes covered by such certificate.
(3) Failure to Pay Taxes. If you fail to pay any Taxes that are
your responsibility under this Agreement, and if Microsoft
is required to pay such Taxes on your behalf, you will
reimburse Microsoft for the full amount of such Taxes,
including any interest, penalties, costs and expenses
(including reasonable attorneys' fees) incurred by Microsoft
resulting from your failure.
(4) Withholding by Foreign Tax Authorities. If you are required
to withhold Taxes from payments made by you to Microsoft
under this Agreement, you may deduct such Taxes from the
amount owed Microsoft and pay them to the appropriate taxing
authority. In such event, you will promptly obtain and send
to Microsoft an official receipt for any such Taxes withheld
or other documents necessary to enable Microsoft to claim a
U.S. Foreign Tax Credit. You will be responsible to
Microsoft for any amounts withheld by you for which you have
not delivered to Microsoft such official receipt. You will
minimize the amount of withheld Taxes to the extent possible
under applicable law.
7. SUPPORT SERVICES.
(a) Microsoft Support. Product support is not included under this
Agreement. You may obtain product support services from Microsoft
under a separate agreement.
(b) Customer Support Requirements. You will provide commercially
reasonable support to your Customers by obtaining and
continuously maintaining: (1) a Microsoft Premier support
services agreement; (2) support services through the Microsoft
Professional support program with prepayment for at least ten
(10) incidents; or (3) support services that are equivalent to
either (1) or (2) above from a third party support services
provider.
8. CUSTOMER AGREEMENTS.
(a) Minimum Required Terms. Your Customer Agreements will, at a
minimum, contain terms protective of Microsoft as follows: (i)
terms that are at least as protective of Microsoft's intellectual
property rights as the terms contained in Section 3(b)(3) and
3(b)(4) above; (2) terms that disclaim, to the extent permitted
by applicable law, all warranties by Microsoft and any liability
by Microsoft for any damages, whether direct, indirect, or
consequential, arising from the use of the Software Services; and
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(3) terms stating that product support for the Software Services
are provided by you and are not provided by Microsoft.
(b) Customer License Terms. If you distribute Client Software and/or
Redistribution Software in order to provide Software Services to
your Customers, you will incorporate, into your Customer
Agreements for any Customers that require such Client Software
and/or Redistribution Software, terms and conditions that are
substantially similar to, and in any event no less restrictive
than, the Customer License Terms contained in Exhibit B. In
addition, if you distribute Redistribution Software, you will
also incorporate into your Customer Agreements (but only for such
Customers that will be using such Redistribution Software) the
applicable terms contained in the SPUR regarding the use,
modification, copying and/or distribution of such Redistribution
Software. You may, subject to confidentiality restrictions,
disclose the SPUR to your Affiliates. Customers and Resellers in
order to fulfill these obligations.
(c) Compliance. At any time during the Term, if Microsoft believes in
good faith that any Customer is not complying with the Customer
License Terms, you will cooperate in good faith with Microsoft in
investigating and remedying such non-compliance.
(d) Failure to Flow-Dawn Customer License Terms. You will be legally
responsible to Microsoft for any unauthorized installation, use,
copying, access or distribution of Client Software and/or
Redistribution Software by a Customer if you fail to: (1)
incorporate, into your Customer Agreements as required above,
terms and conditions that are similar to, and in any event no
less restrictive than, the Customer License Terms; and/or (2)
require your Resellers to incorporate, into their Customer
Agreements as required under Section 3(g)(3), terms and
conditions that are substantially similar to, and in any event no
less restrictive than, the Customer License Terms .
(e) Copies of Software Products. Upon termination of a Customer
Agreement, you will rise all commercially reasonable efforts to:
(1) remove all copies of Client Software and/or Redistribution
Software from the Customer's Devices or otherwise render such
software permanently unusable; and (2) ensure that the Customer
returns or destroys all copies of Client Software and/or
Redistribution Software in its possession.
9. RECORD KEEPING AND VERIFYING COMPLIANCE.
(a) Record Keeping. During the Term and for two (2) years thereafter,
you will keep records of your use of the Software Products, the
use of the Software Products by your Affiliates (if any), the
Software Services provided by you and/or your Affiliates to
Customers end through Resellers, and all other records that are
required to be kept under this Agreement.
(b) Verifying Compliance. Microsoft has the right to verify
compliance with this Agreement, at its expense, during the Term
and for two (2) years thereafter. Such verification will take
place at your facilities upon not less than five (5) business
days prior notice, during normal business hours and is a manner
that does not interfere unreasonably with your operations.
Microsoft will engage an independent accountant from a nationally
recognized public accounting firm ("Independent Auditor"),
selected by Microsoft, to verify compliance. The Independent
Auditor will be subject to a confidentiality obligation. You will
provide the Independent Auditor with access to the relevant
records, information and facilities, including access to any data
center(s) or facilities where Server Software is installed.
Microsoft may also require you to accurately complete a
self-audit questionnaire relating to your use, and the use by
your Affiliates (if any), of the Software Products. Microsoft
will treat information disclosed by you during verification or
self-audit as Confidential Information and will use such
information only to enforce its rights under this Agreement and
any applicable laws, and to determine whether you ace in
compliance with the terms of this Agreement. By invoking the
rights and procedures described above, Microsoft does not waive
its right to enforce this Agreement or to protect its
intellectual property by any other means permitted by law.
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(c) Unreported Use. If verification or self-audit reveals unreported
use of the Software Products, you must promptly order sufficient
PLs and/or SALs to cover all such unreported use. If verification
or self-audit reveals material unreported use of the Software
Products, in addition to promptly ordering sufficient PLs and/or
SALs to cover the unreported use, you must also pay Microsoft:
(1) an additional fee of fifteen percent (15%) of the prices
stated in the then current Price List for each SAL and/or PL that
you ere required to order; plus (2) the reasonable costs incurred
by Microsoft to conduct the verification. In addition, in any
case where material unreported use of a Software Product is
found, it will be presumed that such unreported use began upon
commencement of each Customer relationship with you, unless your
records reasonably demonstrate that such unreported use was
limited in scope and duration. For purposes of this Section 9(c),
"material unreported use" will exist if your use of the Software
Products, as reported in your Monthly Use Reports, is less than
ninety-five percent (95%) of your actual use (as disclosed during
verification or self-audit). If verification does not disclose
material unreported use of the Software Products, Microsoft will
not undertake another verification or self-audit for at least one
(1) year, unless Microsoft receives information that would lead
it to believe in good faith that material unreported use of the
Software Products has occurred since the previous verification.
10. TERM AND TERMINATION.
(a) Term. The term of this Agreement is three (3) years, commencing
on the Effective Date (the "Term"), unless the Term is extended
or this Agreement is otherwise terminated as provided below.
(b) Term Extension. If you are not in breach of this Agreement on the
last day of the Term, and if you have continuing obligations to
provide Software Services under existing Customer Agreements
which extend beyond the end of the Term, then you may obtain an
extension of the Term of this Agreement for the sole purpose of
providing Software Services to such existing Customers. In order
for the Term extension to apply, you must notify Microsoft of the
extension in accordance with Section 16(d) no later than thirty
(30) days before the end of the Term, and your notice must
include the total number of Customer Agreements that extend
beyond the end of the Term and their respective expiration dates.
The Term extension will be limited to the longest remaining
contract period between you and an existing Customer or
thirty-six (36) months, whichever period of time is shorter. You
may not provide Software Services to any new Customers under a
Term extension of this Agreement nor provide Software Services to
say existing Customer beyond the remaining contract period of the
existing Customer Agreement. Except as stated in this Section
10(b), there is no express or implied obligation on either party
to renew or extend this Agreement upon termination or expiration;
and, if the Term of this Agreement is extended in accordance with
the terms imposed here, such extension does sot create any right
or obligation to continue such relationship on the same terms as
those contained in this Agreement after the Term extension ends.
Notwithstanding extension of the Term, this Agreement is, and
will always be interpreted as, a fixed term agreement and not an
indefinite term agreement.
(c) Termination of the Agreement.
(1) Termination Without Cause. You may terminate this Agreement
without cause, so long as you provide sixty (60) days
advance notice to Microsoft in accordance with Section
16(d).
(2) Termination for Breach. A party may terminate this Agreement
due to breach by the other party (including, without
limitation, any breach of the use rights contained in the
SPUR). A notice of breach describing the nature of the
breach must first be sent to the breaching party in
accordance with Section 16(d). This Agreement will not be
terminated if the breaching party cures the breach within
thirty (30) days after receipt of notice.
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(3) Termination by Microsoft. Notwithstanding Section 10(c)(2)
above, without prejudice to any other rights, Microsoft may
immediately terminate this Agreement by providing you with
notice in accordance with Section 16(d) if: (i) you breach
Section 16(a) ("Assignment"); (ii) there are three (3)or
more material breaches by you of the use rights contained in
the SPUR; (iii) you engage in, or participate with any third
party in, the unauthorized manufacture, copying,
distribution or use of any Software Products, or otherwise
engage in the infringement of Microsoft's intellectual
property rights; (iv) you make any assignment for the
benefit of creditors, file a petition in bankruptcy, or are
adjudged bankrupt or become insolvent or are placed in the
hands of a receiver, or (v) you report Zero Use in your
Monthly Use Report for more than six (6) consecutive months.
In addition, if you fail to maintain "Microsoft Certified
Partner" member-level status (or equivalent status under any
successor program) at all times during the Term, Microsoft
may terminate this Agreement upon thirty (30) days prior
written notice, so long as such failure is not thereafter
corrected within such thirty (30) day period.
(d) Obligations on Termination or Expiration. The termination or
expiration of this Agreement will automatically terminate all
license rights granted under this Agreement. Upon termination or
expiration of this Agreement, you must return to Microsoft, or at
Microsoft's direction, destroy and certify to Microsoft the
destruction of, all copies of the Software Products, their
component parts, and Related Printed Materials in your possession
or control that were obtained from WWF and licensed under this
Agreement. You must likewise instruct all Affiliates, Customers,
and Resellers, as applicable, to do the same. There will be no
refund of amounts paid for Related Printed Materials or for Media
containing Software Products that have been so returned or
destroyed. Termination or expiration of this Agreement will not
affect your right to use, in accordance with the terms of the
applicable end user license agreement ("EULA"), any Microsoft
software products legally obtained and licensed under other
Microsoft license agreements or through other authorized channels
of distribution.
11. LIMITED WARRANTY.
(a) Software Product Limited Warranty. Microsoft warrants that each
version of the Software Products will perform substantially in
accordance with its end user documentation ("Documentation").
This limited warranty is valid for a period of ninety (90) days
from the date you first copy, install, access, run, display or
otherwise interact with such version of the Software Products
(the "Warranty Period"). To the extent permitted by applicable
law, any warranties imposed by law concerning the Software
Products are limited to the same Warranty Period.
If you notify Microsoft within the Warranty Period that a
Software Product does not meet this warranty, then, at
Microsoft's option, Microsoft will either: (1) repair or replace
such Software Product; or (2) refund the total amount paid by you
for such Software Product. Any software that repairs or replaces
a Software Product is warranted for the remainder of the Warranty
Period or thirty (30) days, whichever period is longer.
THIS LIMITED WARRANTY DOES NOT APPLY TO REDISTRIBUTION SOFTWARE,
WHICH YOU ARE PERMITTED TO REDISTRIBUTE UNDER THE SPUR. THIS
LIMITED WARRANTY IS VOID IF FAILURE OF THE SOFTWARE PRODUCTS IS
THE RESULT OF ACCIDENT, ABUSE, MISAPPLICATION OR UNAUTHORIZED
MODIFICATION.
THIS LIMITED WARRANTY DOES NOT APPLY TO ANY SOFTWARE PRODUCTS
OBTAINED BY YOU FROM AN OEM. THE WARRANTY PROVIDED BY THE OEM, IF
ANY, WILL APPLY IN LIEU OF THE LIMITED WARRANTY STATED IN THIS
SECTION 11(A).
You do not have the right to make on behalf of Microsoft any
other warranties or promises to any Customer concerning any
Software Product that are not contained in this Section 11(a).
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<PAGE>
After expiration of the Warranty Period but during the Term of
this Agreement, if you notify Microsoft of any material
deviations between performance of a Software Product and its
Documentation, and such deviations have been already reported by
other Microsoft licensees, or, after your report, are reported
commonly by other Microsoft licensees and are acknowledged by
Microsoft, then Microsoft will use commercially reasonable
efforts to correct such deviations and provide corrections to you
in the form of a fix or patch at such time as Microsoft makes
such corrections generally available to other Microsoft
licensees.
The foregoing states Microsoft's entire liability and your
exclusive remedy for any breach of the limited warranty described
in this Section 11(a).
(b) NO OTHER WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN
SECTION 11(A) ABOVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
MICROSOFT DOES NOT MAKE ANY REPRESENTATIONS OR EXPRESS WARRANTIES
AND DISCLAIMS ALL WARRANTIES, DUTIES AND CONDITIONS WITH RESPECT
TO THE SOFTWARE PRODUCTS, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF
VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, OR
CORRESPONDENCE TO DESCRIPTION. THERE ARE NO WARRANTIES OF TITLE,
NON-INFRINGEMENT, QUIET ENJOYMENT OR QUIET POSSESSION WITH
RESPECT TO THE SOFTWARE PRODUCTS. THE ENTIRE RISK AS TO THE
QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE
PRODUCTS, IF ANY, REMAINS WITH YOU.
(c) Fault Tolerance. The Software Products are not fault-tolerant and
are not designed, manufactured or intended for use with on-line
control equipment in hazardous environments requiring fail-safe
performance (e.g., the operation of nuclear facilities, aircraft
navigation or communication systems, air traffic control, direct
life support machines, or weapons systems environments), in which
the failure of the Software Products could lead directly to
death, personal injury, or severe physical, property or
environmental damage ("High Risk Activities"). MICROSOFT AND ITS
SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY
OF FITNESS FOR HIGH RISK ACTIVITIES.
12. DEFENSE OF INFRINGEMENT CLAIMS.
(a) Duty to Defend. Microsoft will defend you against and, subject to
Section l3(a), will pay the amount of any adverse final judgment
(or settlement to which Microsoft consents), resulting from any
claims by an unaffiliated third party that: (1) a Software
Product infringes any copyright enforceable in any jurisdiction;
or (2) a Software Product infringes any patent issued and
enforceable in the United States on or before the date this
Agreement expires or is terminated. Microsoft's obligation under
this Section 12(a) is subject to your notifying Microsoft
promptly in writing of the claim and giving Microsoft sole
control over its defense or settlement. You will provide
Microsoft with reasonable assistance in defending the claim, and
Microsoft will reimburse you for any reasonable out-of-pocket
expenses incurred in providing such assistance.
(b) Exceptions to Duty. Microsoft's obligations under Section 12(a)
will not apply to any infringement claim that is based on your
(1) use of the Software Product after Microsoft notifies you to
discontinue use because of an infringement claim, or (2)
combining the Software Product with a non-Microsoft product, data
or business process if such claim would not have arisen but for
such combination, or (3) altering the Software Product if such
claim would not have arisen but for such alteration. You will
reimburse Microsoft for all reasonable costs or damages that
result from these actions.
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(c) Opportunity to Cure. If Microsoft receives information concerning
an infringement claim related to a Software Product, Microsoft
may, at its expense and without obligation to do so, either (1)
procure for you the right to continue to use the allegedly
infringing Software Product, or (2) modify the Software Product
or replace it with a functional equivalent, to make it
non-infringing, in which case you must immediately stop using the
allegedly infringing Software Product. If, as a result of an
infringement claim, your use of a Software Product is enjoined by
a court of competent jurisdiction, Microsoft will use
commercially reasonable efforts to either procure the right to
continue its use, replace the Software Product with a functional
equivalent, or modify the Software Product to make it
non-infringing.
(d) Other Third Party Claims. If any other type of third party claim
is brought against you regarding Microsoft's intellectual
property (i.e., any third party claim not covered under Section
12(a) above), you must notify Microsoft promptly in writing.
Microsoft may, at its option, choose to treat these claims as
being covered by this Section 12.
(e) Exclusive Remedy. The rights and remedies granted to you under
this Section 12 and Section 13 (Limitation of Liability) state
Microsoft's entire liability and your exclusive remedy with
respect to any claim of infringement of the intellectual property
rights of a third party, whether arising under statutory or
common law or otherwise.
13. LIMITATION OF LIABILITY.
(a) Limitation. Microsoft's liability under this Agreement will be
limited to the maximum extent permitted by applicable law to
direct damages up to the amount you have paid Microsoft under
this Agreement. The foregoing limitation does not apply to
Microsoft's obligation to pay the costs of defending an
infringement claim under Section 12(a); however, the foregoing
limitation does apply to Microsoft's obligation to pay any final
judgment or settlement under Section 12(a). In the case of
Redistribution Software, Microsoft's total liability is limited
to Five Thousand Dollars (US $5,000) or its equivalent in local
currency.
(b) No Liability for Certain Damages. To the maximum extent permitted
by applicable law, neither you or Microsoft, nor the parties'
respective Affiliates or suppliers, will be legally responsible
for any indirect damages (including, without limitation,
consequential, special, punitive or incidental damages, damages
for loss of profits or revenues, loss of privacy, business
interruption, or loss of business information), arising out of
the use of or inability to use the Software Products, or
otherwise under or in connection with this Agreement, even if
advised of the possibility of such damages or if such possibility
was reasonably foreseeable. The exclusion of liability in this
Section 13(b) does not apply to either party's liability to the
other for violation of the other party's intellectual property
rights.
(c) Application. The limitations on and exclusions of liability for
damages in this Agreement apply regardless of whether the
liability is based on breach of contract, tort (including
negligence), strict or product liability, breach of warranty, or
any other legal theory, and even if any remedy fails of its
essential purpose.
14. COMPLIANCE WITH EXPORT LAWS. The Software Products licensed under this
Agreement are of U.S. origin for purposes of U.S. export control laws.
You will comply with all applicable international and national laws
that apply to the Software Products, including the U.S. Export
Administration Regulations, as well as end-user, end-use and
destination restrictions issued by U.S. and other governments. For
additional information on exporting of Microsoft Products, see
http://www.microsoft.com/exporting/.
15. CONFIDENTIALITY.
(a) Use of Confidential information. For a period of five (5) years
after disclosure, neither party will use the other party's
Confidential Information without the other party's written
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consent except in furtherance of this business relationship or
disclose the other party's Confidential Information except: (1)
when disclosure is necessary for a party to enforce its rights
under this Agreement or any applicable laws; (2) to obtain advice
from legal or financial consultants; or (3) if compelled by law,
in which case the party compelled to make the disclosure will use
its best efforts to give the other party notice of the
requirement so that the disclosure can be contested. The parties
will take reasonable precautions to safeguard each other's
Confidential Information. Such precautions will be at least as
great as those each party takes to protect its own confidential
information. A party may disclose the other party's Confidential
Information to its employees, agents or consultants, provided
that such disclosures are only on a need-to-know basis and are
subject to the confidentiality obligations imposed here. When
Confidential Information is no longer necessary to perform or
enforce any obligation under this Agreement, each party will
return it to the other party or destroy it at the other's
request.
(b) Cooperation in the Event of Disclosure. A party will immediately
notify the other upon discovery of any unauthorized use or
disclosure of Confidential Information and will cooperate in any
reasonable way to help the other party regain possession of the
Confidential Information and prevent further unauthorized use.
16. MISCELLANEOUS.
(a) Assignment. You may not assign your rights or obligations under
this Agreement, whether by contract, merger, operation of law, or
otherwise, without the prior written consent of Microsoft.
Microsoft will not unreasonably withhold or delay its consent to
a request for assignment. Microsoft may assign this Agreement or
any portion thereof to any Affiliate without your consent.
Microsoft will notify you of any such assignment in writing. Any
attempted assignment in violation of this Section is null and
void.
(b) Order of Precedence. If there is any direct inconsistency between
these Terms and Conditions and any terms contained in the SPUR,
then these Terms and Conditions will control. However, for the
avoidance of doubt, in the event that a subject is addressed in
the SPUR and not in these Terms and Conditions, then the terms in
the SPUR will control. The terms of this Agreement will control
over any purchase order you may send to Microsoft.
(c) Amendments. This Agreement, except for the SPUR and the Price
List, may be changed only by a written amendment that is signed
by an authorized representative of each party. Microsoft may
amend the SPUR in accordance with Section 4(a), and Microsoft may
amend the Price List in accordance with Sections 6(b) and 6(c).
(d) Notices. Except as provided in Sections 4(b), 5(c), 6(b) and
6(c), all notices under this Agreement must be addressed to a
party (as specified on the first page of this Agreement) and sent
by one of the following methods: (1) postage prepaid, certified
or registered mail, return receipt requested; (2) overnight
courier (e.g., DHL, Federal Express, Airborne), charges prepaid,
confirmation requested; or (3) facsimile, with confirmation of
delivery. Notices will be deemed delivered on the date shown on
the postal return receipt or on the overnight courier or
facsimile confirmation of delivery.
(e) Applicable Law. If this Agreement is with a Microsoft Affiliate
located outside of Europe, this Agreement will be governed by and
construed in accordance with the laws of the State of Washington,
U.S.A., exclusive of its choice of law rules, and the federal
laws of the United States. If this Agreement is with a Microsoft
Affiliate located in Europe, this Agreement will be governed by
and construed in accordance with the laws of Ireland. The 1980
United Nations Convention on Contracts for the International Sale
of Goods and its related instruments will not apply to this
Agreement.
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(f) Dispute Resolution. If Microsoft brings an action to enforce this
Agreement, Microsoft will bring it in the jurisdiction where you
have your company headquarters. If this Agreement is with a
Microsoft Affiliate located outside of Europe, you will bring any
action to enforce this Agreement in the State of Washington,
U.S.A. If this Agreement is with a Microsoft Affiliate located in
Europe, you will bring any action to enforce this Agreement in
Ireland. This choice of jurisdiction and venue does not prevent
either party from seeking injunctive relief with respect to a
violation of intellectual property rights, confidentiality
obligations or enforcement or recognition of any award or order
in any appropriate jurisdiction.
(g) Survival. Sections 6(f), 9, 10(d), 12, 13, 15, and 16 of this
Agreement will survive the termination or expiration of this
Agreement.
(h) Relationship. This Agreement does not create a joint venture,
partnership, agency, representative, franchise or employment
relationship between the parties. This Agreement does not grant
either party the authority to act for the other party in any
capacity or to make commitments of any kind for the account of,
or on behalf of, the other party, except to the extent expressly
set forth in this Agreement.
(i) No Waiver. No waiver of any breach of this Agreement shall be a
waiver of any other breach, and no waiver shall be effective
unless made in writing and signed by an authorized representative
of the waiving party.
(j) Headings. The paragraph and Section headings in this Agreement
are inserted for convenience only and will not in any way affect
the meaning or construction of any provision of this Agreement.
(k) Severability. If a court holds any provision of this Agreement to
be illegal, invalid or unenforceable, the remaining provisions
will remain in full force and effect and the parties will amend
the Agreement to give effect to the stricken clause to the
maximum extent possible.
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EXHIBIT A: AFFILIATE AGREEMENT FORM
PRIOR TO EXERCISING ANY RIGHTS (INCLUDING BUT NOT LIMITED TO ANY USE OF SOFTWARE
PRODUCTS) UNDER YOUR SERVICES PROVIDER LICENSE AGREEMENT (THE "AGREEMENT"), EACH
AFFILIATE MUST EXECUTE AN AFFILIATE AGREEMENT IN THE FORM SPECIFIED BELOW. BOTH
YOU AND THE AFFILIATE MUST KEEP THE EXECUTED AFFILIATE AGREEMENT ON FILE AND
MUST DELIVER IT TO MICROSOFT UPON REQUEST.
[TO BE PRINTED ON AFFILIATE'S COMPANY LETTERHEAD]
AFFILIATE AGREEMENT
For good and valuable consideration, [insert name of affiliate], a corporation
organized under the laws of [insert name of jurisdiction] ("Affiliate") hereby
covenants and agrees with [insert name of contracting Microsoft Affiliate]
("Microsoft"), that Affiliate will comply with all obligations of [insert name
of company that has entered into the Agreement with Microsoft] a corporation
organized under the laws of [insert name of jurisdiction] ("Company") under the
Microsoft Services Provider License Agreement between Microsoft and Company
effective as of [insert Effective Date](the "Agreement").
Affiliate acknowledges and agrees that its agreement herein is a condition for
Affiliate to exercise any of the rights granted by Company to Affiliate under
the terms of the Agreement. Affiliate acknowledges and agrees that it will be
bound by the Terms and Conditions of the Agreement applicable to Company and
that it and Company will be jointly and severally liable to Microsoft for all
obligations related to Affiliate's exercise of any license rights under the
Agreement, including but not limited to, the payment of monthly fees under the
Agreement. Notwithstanding the foregoing, Affiliate acknowledges that all
Monthly Use Reports and payments to be provided by each Affiliate to Microsoft
under the Agreement will be consolidated and provided to Microsoft each month by
Company on behalf of Affiliate.
Affiliate acknowledges and agrees that, in the event Affiliate ceases to be an
Affiliate of Company (as such term "Affiliate" is defined in the Agreement),
then the rights granted hereunder will automatically terminate on the date that
Affiliate ceases to be an Affiliate of Company.
Any terms used herein that are defined in the Agreement will have the same
meaning as in the Agreement.
IN WITNESS WHEREOF, a duly authorized representative of Affiliate has executed
this document as of the date set forth below. All signed copies of this document
will be deemed originals.
_________________________________
(Name of Affiliate)
_________________________________
(Signature)
_________________________________
(Print Name and Title)
_________________________________
(Date)
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<PAGE>
EXHIBIT B: CUSTOMER LICENSE TERMS
You will use your name in place of references to "Company" below.
TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE
This document concerns your use of Microsoft software, which includes computer
software provided to you by [COMPANY] as described below, and may include
associated media, printed materials, and "online" or electronic documentation
(individually and collectively "SOFTWARE PRODUCT'S"). [COMPANY] does not own the
SOFTWARE PRODUCTS and the use thereof is subject to certain rights and
limitations of which [COMPANY] needs to inform you. Your right to use the
SOFTWARE PRODUCTS is subject to your agreement with [COMPANY], and to your
understanding of, compliance with and consent to the following terms and
conditions, which [COMPANY] does not have authority to vary, alter or amend.
1. DEFINITIONS.
"CLIENT SOFTWARE" means software that allows a Device to access or utilize
the services or functionality provided by the Server Software.
"DEVICE" means each of a computer, workstation, terminal, handheld PC,
pager, telephone, personal digital assistant, "smart phone," or other
electronic device.
"SERVER SOFTWARE" means software that provides services or functionality on
a computer acting as a server.
"REDISTRIBUTION SOFTWARE" means the software described in Paragraph 4 ("Use
of Redistribution Software") below.
2. OWNERSHIP OF SOFTWARE PRODUCTS. The SOFTWARE PRODUCTS are licensed to
[COMPANY] from an affiliate of the Microsoft Corporation ("Microsoft"). All
title and intellectual property rights in and to the SOFTWARE PRODUCTS (and
the constituent elements thereof, including but not limited to any images,
photographs, animations, video, audio, music, text and "applets"
incorporated into the SOFTWARE PRODUCTS) are owned by Microsoft or its
suppliers. The SOFTWARE PRODUCTS are protected by copyright laws and
international copyright treaties, as well as other intellectual property
laws and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS
does not transfer any ownership of the SOFTWARE PRODUCTS or any
intellectual property rights to you.
3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your
Devices by [COMPANY] only in accordance with the instructions, and only in
connection with the services, provided to you by [COMPANY].
4. USE OF REDISTRIBUTION SOFTWARE. In connection with the services provided to
you by [COMPANY], you may have access to certain "sample,"
"redistributable" and/or software development ("SDK") software code and
tools (individually and collectively "Redistribution Software"). YOU MAY
NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE
UHNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS
CONTAINED IN THE SERVICES PROVIDER USE RIGHTS ("SPUR") APPLICABLE TO
[COMPANY], WHICH TERMS MUST BE PROVIDED TO YOU BY [COMPANY]. Microsoft does
not permit you to use any Redistribution Software unless you expressly
agree to and comply with such additional terms, as provided to you by
[COMPANY].
5. COPIES. You may not make any copies of the SOFTWARE PRODUCTS; provided,
however, that you may (a) make one (1) copy of Client Software on your
Device as expressly authorized by [COMPANY]; and (b) you may make copies of
certain Redistribution Software in accordance with Paragraph 4 (Use of
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<PAGE>
Redistribution Software). You must erase or destroy all such Client
Software and/or Redistribution Software upon termination or cancellation of
your agreement with [COMPANY], upon notice from [COMPANY] or upon transfer
of your Device to another person or entity, whichever first occurs. You may
not copy any printed materials accompanying the SOFTWARE PRODUCTS.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may
not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCTS,
except and only to the extent that applicable law, notwithstanding this
limitation expressly permits such activity.
7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly
transfer or distribute the SOFTWARE PRODUCTS to any third party, and you
may not permit any third party to be have access to and/or use the
functionality of the SOFTWARE PRODUCTS.
8. TERMINATION. Without prejudice to any other rights, [COMPANY] may terminate
your rights to use the SOFTWARE PRODUCTS if you fail to comply with these
terms and conditions. In the event of termination or cancellation, you must
stop using and/or accessing the SOFTWARE PRODUCTS, and destroy all copies
of the SOFTWARE PRODUCTS and all of its component parts.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES,
LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY
[COMPANY] AND NOT BY MICROSOFT OR ITS AFFILIATES OR --- SUBSIDIARIES.
10. PRODUCT SUPPORT. Any product support for the SOFTWARE PRODUCTS is provided
to you by [COMPANY] and is not provided by Microsoft or its affiliates or
subsidiaries.
11. NOT FAULT TOLERANT. THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS
NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE
IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE
PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY
OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRICTIONS. The SOFTWARE PRODUCTS are of U.S. origin for purposes
of U.S. export control laws. You agree to comply with all applicable
international and national laws that apply to the SOFTWARE PRODUCTS,
including the U.S. Export Administration Regulations, as well as end-user,
end-use and destination restrictions issued by U.S. and other governments.
For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH. In addition to any liability you may have to
[COMPANY], you agree that you will also be legally responsible directly to
Microsoft for any breach of these terms and conditions.
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1566168
312-404-7906mharris@taftlaw.com
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