EXHIBIT 10.3
MICROSOFT
ENTERPRISE SOFTWARE ADVISOR
SERVICE AGREEMENT
This Microsoft Enterprise Software Advisor Service Agreement ("Agreement") is
entered into as of this 1st day of October, 2001 (the "Effective Date") between
MSLI, G.P. ("MICROSOFT") having its principal place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and SOFTWARE SPECTRUM, INC. ("COMPANY")
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. PURPOSE
The purpose of this Agreement is to set forth the terms and conditions by which
MICROSOFT appoints COMPANY as a non-exclusive Enterprise Software Advisor in the
Territory for support in the licensing and sale of Microsoft Enterprise
Agreements in the Territory. Microsoft operates the Enterprise Software Advisor
Program ("ESA Program") only in conjunction with the licensing and sale of
Enterprise Software Products pursuant to Enterprise Enrollments.
2. DEFINITIONS
Except as set forth above, all capitalized terms included in this Agreement are
defined as follows.
2.1 "AFFILIATED COMPANIES" means those MICROSOFT companies directly
involved in the sale of Microsoft Volume Licensing, including, but not limited
to Microsoft Corporation, Microsoft Ireland Operations Limited, and Microsoft
Operations Pte Ltd.
2.2 "COMPANY CLAIMS" means any default, breach or alleged breach (which
becomes a default or breach) of COMPANY's obligations, promises,
representations, warranties or agreements relating to the Agreement, or any act
or omission of COMPANY relating to its role as an Enterprise Software Advisor
under the Agreement.
2.3 "DOCUMENTATION COMPONENTS" means the supplemental disk sets and
Enterprise Software Product documentation available from Microsoft Worldwide
Fulfillment or such other fulfillment source that MICROSOFT may designate in
writing.
2.4 "ENTERPRISE AGREEMENT CUSTOMER" means any business entity,
identifiable division, business unit or office location which has the ability to
run Enterprise Software Products under the terms of any form of Enterprise
Enrollment.
2.5 "ENTERPRISE SOFTWARE PRODUCTS" means the Microsoft software
products which MICROSOFT will designate from time to time, that may be
reproduced and run by Enterprise Agreement Customers under any form of
Enterprise Enrollment, excluding Documentation Components, MICROSOFT product
support services, and MICROSOFT consulting services.
2.6 "ENTERPRISE SOFTWARE ADVISOR" or "ESA" means an entity that
MICROSOFT has authorized to receive payment from MICROSOFT in exchange for
certain services performed for Enterprise Agreement Customers.
2.7 "ENTERPRISE SOFTWARE ADVISOR FEES" or "ESA FEES" means the fees
described on Schedule B that may be earned by an Enterprise Software Advisor for
the performance of the functions set forth on Schedule A.
2.8 "ENTERPRISE AGREEMENT" means the Microsoft Enterprise Agreement 6.0
and any successor agreement even if identified by a different name, in such form
as MICROSOFT will determine.
2.9 "ENTERPRISE ENROLLMENT" means any enrollment relevant to the
Enterprise Agreement, and any successor agreement even if identified by a
different name, which is entered into by an Enterprise Agreement Customer and
MICROSOFT.
Microsoft Confidential - Disclosure Prohibited
2.10 "LEVEL 1 SALES" means sales of Enterprise Software Products
pursuant to Enterprise Enrollments to global, strategic and major accounts
(i.e., accounts with 6000 or more desktops), which are led by MICROSOFT, and for
which an Enterprise Software Advisor shall perform the functions described on
Schedule A to the Agreement and shall receive the fees identified under Fee
Level 1 on Schedule B to the Agreement.
2.11 "LEVEL 2 SALES" means sales of Enterprise Software Products
pursuant to Enterprise Enrollments to corporate customer accounts (i.e.,
accounts with between 750 and 5,999 desktops) which are led by MICROSOFT with
assistance by an Enterprise Software Advisor, and for which an Enterprise
Software Advisor shall perform the functions set forth on Schedule A to the
Agreement, and shall receive the fees identified under Fee Level 2 on Schedule B
to the Agreement.
2.12 "LEVEL 3 SALES" means sales of Enterprise Software Products
pursuant to Enterprise Enrollments to medium enterprise accounts (i.e., accounts
with less than 750 desktops) for which such Enterprise Software Advisor shall
perform the functions set forth on Schedule A to the Agreement, and shall
receive the fees identified under Fee Level 3 on Schedule B to the Agreement.
2.13 "TAXES" means any foreign, U.S. federal, state, local, municipal
or other governmental taxes, duties, levies, fees, excises or tariffs, arising
as a result of or in connection with the transactions contemplated under the
Agreement including, without limitation, (i) any state or local sales or use
taxes or any value added tax or business transfer tax now or hereafter imposed
on the provision of goods and services to Microsoft by COMPANY under the
Agreement, (ii) taxes imposed or based on or with respect to or measured by any
net or gross income or receipts of COMPANY, (iii) any franchise taxes, taxes on
doing business, gross receipts taxes or capital stock taxes (including any
minimum taxes and taxes measured by any item of tax preference), (iv) any taxes
imposed or assessed after the date upon which the Agreement is terminated based
on the provisions of goods and services to MICROSOFT by COMPANY, (v) taxes based
upon or imposed with reference to COMPANY's real and/or personal property
ownership and (vi) any taxes similar to or in the nature of those taxes
described in (i), (ii), (iii), (iv) or (v) above, now or hereafter imposed on
COMPANY (or any third parties with which COMPANY is permitted to enter into
agreements relating to its undertakings hereunder), together with any penalties,
interest or any additions thereto.
2.14 "TERRITORY" means the geographic boundaries of Canada and the
United States of America, excluding all United States territories, possessions,
or protectorates.
3. TERM AND TERMINATION
3.1
This Agreement shall be effective on the Effective Date and shall, unless
terminated earlier as provided in Section 3.2 below, terminate on June 30,2002.
3.2 TERMINATION
3.2(a) TERMINATION WITHOUT CAUSE
Either party shall have the right to terminate this Agreement at any time,
without cause and without the intervention of the courts, on the delivery of
thirty (30) calendar days' prior written notice. Neither party shall be
responsible to the other for any costs or damages resulting from the termination
of this Agreement under this section.
3.2(b) TERMINATION WITH CAUSE
Without prejudice to MICROSOFT's other rights or remedies, MICROSOFT shall have
the right to terminate this Agreement immediately upon written notice if any of
the following events occurs:
(i) If COMPANY breaches any of the material terms or
conditions of this Agreement, and such breach remains unremedied to MICROSOFT's
reasonable satisfaction for thirty (30) calendar days after COMPANY receives
written notice of such breach; or
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(ii) If COMPANY makes any assignment or attempts to
make an assignment for the benefit of creditors, files a petition in bankruptcy,
or is adjudged bankrupt or becomes insolvent, or is placed in the hands of a
receiver. The equivalent of any of these proceedings or acts, though known
and/or designated by some other name or term in the Territory, shall likewise
constitute grounds for termination of this Agreement.
3.3 OBLIGATIONS ON TERMINATION
Upon termination or expiration of this Agreement MICROSOFT will pay COMPANY all
outstanding fees due to COMPANY. MICROSOFT shall retain the right, at its sole
discretion, to direct all of the Enterprise Agreement Customers for which
COMPANY has been acting as Enterprise Software Advisor to a newly designated
Enterprise Software Advisor. In such event, COMPANY shall not, under any
circumstances, be entitled to any compensation for such Enterprise Agreement
Customers' orders received by MICROSOFT after the effective date of such
termination or expiration. If an Enterprise Agreement Customer does not
designate a new Enterprise Software Advisor, COMPANY may, at MICROSOFT's sole
discretion and unless this Agreement has been terminated for cause, continue to
be eligible to receive Enterprise Software Advisor Fees related to payments
received by MICROSOFT from such Enterprise Agreement Customer until the
applicable Enterprise Enrollment expires, provided that COMPANY abides by all
terms and conditions of this Agreement, including without limitation,
continuation of the functions specified in the attached Schedule A.
4. COMPANY AND MICROSOFT OBLIGATIONS
4.1 ENTERPRISE SOFTWARE ADVISOR RESPONSIBILITIES AND OBLIGATIONS
(a) Each of MICROSOFT's Enterprise Agreement Customers will
designate an Enterprise Software Advisor on each Enterprise Enrollment signed
by such customer. MICROSOFT shall promptly notify COMPANY in writing when it is
designated by an Enterprise Agreement Customer as its Enterprise Software
Advisor, and COMPANY, with respect to such Enterprise Agreement Customer, will
perform the functions specified in Schedule A, attached hereto and incorporated
herein by reference.
(b) An Enterprise Agreement Customer may unilaterally change
its designated Enterprise Software Advisor upon thirty (30) days prior notice in
accordance with the terms of its Enterprise Agreement, and will notify COMPANY
in writing of any termination of its designation. In such event, COMPANY shall
not be entitled to any compensation for such Enterprise Agreement Customer's
orders received by MICROSOFT after the effective date of such termination.
COMPANY agrees that MICROSOFT shall have no liability to COMPANY arising an
Enterprise Agreement Customer's unilateral decision to change its Enterprise
Software Advisor.
(c) MICROSOFT and its Enterprise Agreement Customers will be
the only parties to Enterprise Agreements and Enterprise Enrollments and at no
time will COMPANY have or acquire any title, interest, license or right in or to
any Microsoft Enterprise Software Products or other Microsoft services. COMPANY
acknowledges that MICROSOFT remains free to license Microsoft software or sell
services in any way it chooses, whether directly or indirectly through
distributors or intermediaries or by any other means, and at such prices and on
any other terms it chooses.
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4.2 ENTERPRISE SOFTWARE ADVISOR FEES
(a) COMPANY is entitled to receive an Enterprise Software
Advisor Fee when MICROSOFT receives payment in full (for which full payment of
pre-approved instalment payments is considered payment in full) for each
individual invoice for Enterprise Software Products under an Enterprise
Enrollment with respect to which COMPANY has been designated as the Enterprise
Software Advisor and for so long as that designation remains current. In the
event of an Enterprise Agreement Customer fails to make payment in full,
MICROSOFT will work with COMPANY to cause the Enterprise Software Advisor Fee
related to the payment to be paid to COMPANY. Enterprise Software Advisor Fees
are as outlined in the attached Schedule B. Fees are calculated net of any
sales, use, value added or other comparable taxes or governmental charges
collected from the Enterprise Agreement Customer, and net of returns and
adjustments. The Enterprise Software Advisor Fee Level will be set on the date
the Enterprise Enrollment is executed by MICROSOFT and will not be adjusted for
increases or decreases in desktop commitment.
(b) All Enterprise Software Advisor Fees are payable only on
Enterprise Software Products for Enterprise Enrollments where COMPANY's
designation by the Enterprise Agreement Customer is current and will cease to be
payable to the extent that an Enterprise Enrollment with respect to which
COMPANY has been designated expires or terminates or is withdrawn for any
reason.
(c) Payment of Enterprise Software Advisor Fees is dependent
on COMPANY's satisfactory performance of the functions specified in the attached
Schedule A, as determined by MICROSOFT in its reasonable discretion. Payment of
Enterprise Software Advisor Fees for any individual Enterprise Enrollment may be
withheld or reduced at MICROSOFT's reasonable discretion (not to exceed the
percentages outlined in Schedule B) in the case COMPANY is in breach of any if
its obligations to Microsoft under this Agreement. Obligations include without
limitation: (i) performance of the functions outlined in Schedules A, and (ii)
compliance with the Enterprise Software Advisor Policies and Procedures Manual.
MICROSOFT agrees to notify COMPANY in advance of any deductions. MICROSOFT and
COMPANY will use their reasonable best efforts to resolve any disputes arising
out of the performance of COMPANY pursuant to this Agreement.
(d) Enterprise Software Advisor Fees shall not be paid in
respect of any other agreement between the Enterprise Agreement Customer and
MICROSOFT or for any order by such customer for services other than provided
under the applicable Enterprise Enrollment. COMPANY acknowledges and agrees that
it does not expect and is not entitled to any payments for its activities under
or relating to this Agreement other than fees as stated in this Agreement.
(e) In the event the Enterprise Agreement Customer receives a
credit from MICROSOFT, MICROSOFT reserves the right to adjust COMPANY's
Enterprise Software Advisor Fee to reflect such credit.
4.3 PAYMENT OF FEES
MICROSOFT shall pay COMPANY Enterprise Software Advisor Fees to which it is
entitled two (2) times each fiscal month (approximately the 15th. and last day
of each month) and within fifteen (15) days of the date MICROSOFT receives
payment from the Enterprise Agreement Customer. All payments shall be in the
form of Automated Clearinghouse wire transfer. In order to receive payment,
COMPANY must complete and submit the Wire Transfer Information Form provided to
COMPANY by MICROSOFT. COMPANY agrees to promptly notify MICROSOFT of any change
in the information supplied in such form. Upon payment of the Enterprise
Software Advisor Fee, MICROSOFT will provide COMPANY a statement showing the
relevant details of the relevant Enterprise Enrollment(s) and license purchases
concerned and any compliance deductions so COMPANY can verify the amount paid.
If COMPANY has any questions regarding payments hereunder, COMPANY must contact
MICROSOFT in writing within forty-five (45) days of receipt of the statement,
after which time all payments shall be treated in all respects as final.
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4.4 ENTERPRISE SOFTWARE ADVISOR POLICIES AND PROCEDURES
COMPANY will comply with all terms and conditions of the Microsoft Enterprise
Software Advisor Policies and Procedures manual provided to COMPANY by
MICROSOFT, as may be modified by MICROSOFT and provided to COMPANY from time to
time.
4.5 NO AUTHORITY
MICROSOFT gives COMPANY no authority to act in any way on its behalf or on
behalf of any MICROSOFT company. Accordingly, COMPANY acknowledges and agrees
that it has no authority to, and undertakes it will not, directly or indirectly
accept, negotiate, execute or conclude any customer order or contract for
MICROSOFT Enterprise Software Products and will not seek to commit or bind
MICROSOFT or render liable MICROSOFT or any MICROSOFT company in any way with
respect to the ESA Program. Without limiting any of the foregoing, COMPANY has
no authority to vary, and accordingly COMPANY undertakes that it will not vary
or seek to vary, the terms and conditions of any Enterprise Agreement or
Enterprise Enrollment or the basis on which any customer obtains any MICROSOFT
licenses or services.
4.6 RELATIONSHIP WITH OTHER ROLES
If at any time before the Effective Date COMPANY has been a Large Account
Reseller appointed by MICROSOFT or any other MICROSOFT company, COMPANY
acknowledges and agrees that such role, and any contract under which it has
engaged to carry it out, are separate and distinct from COMPANY's role under
this Agreement and that this Agreement and COMPANY's role under it commenced on
the Effective Date and not any date before.
5. COMPANY OBLIGATIONS
5.1 SHARING OF FEES
COMPANY is free to share with any person or business entity any part of the
Enterprise Software Advisor Fees received hereunder, except that COMPANY shall
not pay any Enterprise Software Advisor Fee to any Enterprise Agreement Customer
as a cash rebate. Notwithstanding any fee-sharing arrangement entered into by
COMPANY, MICROSOFT shall not be obligated to pay Enterprise Software Advisor
Fees to any person or business entity other than COMPANY.
5.2 COMPLIANCE WITH APPLICABLE LAWS/ANTI-PIRACY
COMPANY agrees to report to MICROSOFT, as soon as possible after it notices, any
suspected counterfeiting, piracy or other infringement of copyright in computer
programs, manuals, marketing materials or other copyrighted materials owned by
MICROSOFT or any MICROSOFT company and agrees to reasonably cooperate with
MICROSOFT in the investigation of counterfeit, pirated or illegal software.
5.3 TAXES
Microsoft is not liable for any of the Taxes of COMPANY that COMPANY is legally
obligated to pay which are incurred or arise in connection with or related to
the provision of services under this Agreement, and all such Taxes (including
but not limited to net income or gross receipts taxes, franchise taxes, and/or
property taxes) shall be the financial responsibility of COMPANY, provided that
Microsoft shall pay to COMPANY any sales or use taxes that are owed by Microsoft
solely as a result of entering into this Agreement and which are required to be
collected from Microsoft by COMPANY under applicable law. Microsoft may provide
to COMPANY a valid exemption certificate in which case COMPANY shall not collect
the taxes covered by such certificate. COMPANY agrees to indemnify, defend and
hold Microsoft harmless from any Taxes (including sales or use taxes paid by
Microsoft to COMPANY) or claims, causes of action, costs (including, without
limitation, reasonable attorneys' fees) and any other liabilities of any nature
whatsoever related to such Taxes.
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If taxes are required to be withheld on any amounts otherwise to be paid by
Microsoft to COMPANY, Microsoft will deduct such taxes from the amount otherwise
owed and pay them to the appropriate taxing authority. At COMPANY's written
request and expense, Microsoft will use reasonable efforts to cooperate with and
assist COMPANY in obtaining tax certificates or other appropriate documentation
evidencing such payment, provided, however, that the responsibility for such
documentation shall remain with COMPANY.
This tax section shall govern the treatment of all taxes arising as a result of
or in connection with this Agreement notwithstanding any other section of this
Agreement.
5.4 INSURANCE
At all times when COMPANY will be performing services pursuant to this
Agreement, COMPANY will procure and maintain insurance which meets or exceed the
following coverages:
a. COMMERCIAL GENERAL LIABILITY covering bodily injury and property
damage liability with a limit of not less than $2,000,000 each occurrence;
b. WORKERS' COMPENSATION covering COMPANY employees pursuant to
applicable state workers' compensation laws for work-related injuries suffered
by employees of COMPANY;
c. EMPLOYER'S LIABILITY with limits of not less than $1,000,000 each
accident; and
d. ERRORS AND OMISSIONS LIABILITY covering damages arising out of
negligent acts, errors, or omissions committed by COMPANY or its employees in
the performance of this Agreement, with a limit of liability of not less than
$2,000,000 each claim.
COMPANY will provide MICROSOFT with certificates of insurance evidencing this
coverage on request
6. MICROSOFT OBLIGATIONS
6.1 RESERVATION OF RIGHTS
MICROSOFT expressly reserves the right at any time to terminate any Enterprise
Agreement Customer's status as an end user in the event such customer fails to
comply with the terms of the Enterprise Agreement or any Enterprise Enrollment.
MICROSOFT agrees to promptly notify COMPANY in writing of the termination of any
Enterprise Agreement Customer for which COMPANY is the Enterprise Software
Advisor. If MICROSOFT terminates a given customer, and MICROSOFT gives the
COMPANY written notice thereof, COMPANY will not have any claims against
MICROSOFT for damages or lost profits resulting from such termination.
6.2 LIMITATION OF LIABILITY; LIMITATION ON REMEDY
(a) LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS, DAMAGE, OR INJURY
ARISING OUT OF THIS AGREEMENT (INCLUDING CLAIMS FOR BUSINESS PROFITS, BUSINESS
INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) WHETHER SPECIAL, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL AND WHETHER OR NOT CAUSED BY SUCH PARTY'S NEGLIGENCE
OR THAT OF SUCH PARTY'S EMPLOYEES OR AGENTS, EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
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(b) LIMITATION ON REMEDY
IN ANY CASE, THE LIABILITY OF EITHER PARTY UNDER ANY PROVISION OF THIS AGREEMENT
SHALL BE LIMITED TO THE AMOUNT OF ENTERPRISE SOFTWARE ADVISOR FEES ACTUALLY PAID
BY MICROSOFT UNDER THIS AGREEMENT. THIS LIMITATION ON REMEDY IS CUMULATIVE WITH
ALL OF A PARTY'S EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE
LIMIT. EACH PARTY RELEASES THE OTHER FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR
DEMANDS IN EXCESS OF THE LIMITATION.
7. DEFENSE OBLIGATION
COMPANY shall defend MICROSOFT, its subsidiaries, and Affiliated Companies from
and against any claims, losses and damages relating to any Company Claim.
COMPANY's obligations to defend MICROSOFT shall only apply provided that COMPANY
is immediately notified in writing of any such Company Claim. At MICROSOFT's
sole option, MICROSOFT may participate in the selection of counsel, defense
and settlement of any Company Claim covered by this Section 7, or may tender
sole control over the defense or settlement of the Company Claim to COMPANY. If
MICROSOFT chooses to participate in the selection of counsel, defense and
settlement of such claims, the parties shall work together in good faith to
reach decisions which are mutually acceptable to both parties. MICROSOFT shall
provide reasonable assistance in the defense of all Company Claims.
8. DELAY IN PERFORMANCE
Neither party shall be liable to the other party for failure to comply with any
obligations hereunder where such failure is caused by any reason beyond its
reasonable control including, but not limited to, act of God, riot, strike,
lockouts, trade disputes or labor disturbance, accident, breakdown of machinery,
fire, flood, storm or difficulty in obtaining workmen, materials or transport.
9. ENTIRE AGREEMENT/MODIFICATION
This Agreement and all attached Schedules constitute the entire agreement
between MICROSOFT and COMPANY, and supersedes and terminates any and all prior
agreements or contracts, written or oral, entered into between the parties
relating to the subject matter hereof. Any representations, promises, or
conditions in connection therewith not in writing signed by both parties shall
not be binding upon either party. Any changes or modifications to this Agreement
must be made in writing and with the mutual agreement of the parties.
10. ATTORNEY'S FEES; GOVERNING LAW
In the event an action is commenced to enforce a party's rights under this
Agreement, the prevailing party (as determined by the court) in such action
shall be entitled to recover its reasonable costs and attorneys' fees. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of Washington. COMPANY consents to jurisdiction and venue in King
County, Washington. The parties agree that any dispute arising under this
Agreement shall be heard exclusively in federal or state court in King County,
Washington.
11. NO ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, provided that COMPANY may
not assign its rights or obligations under this Agreement in any way without the
prior written consent of MICROSOFT. MICROSOFT may assign this Agreement or any
portions thereof, to any MICROSOFT related company or business entity.
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12. NOTICES
Except as otherwise provided herein, all notices required or contemplated by
this Agreement shall be in writing, delivered by U.S. certified mail (return
receipt requested), or via overnight courier (e.g., Federal Express, or DHL),
and addressed as follows:
If to MICROSOFT: MSLI, GP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Volume Licensing Operations
With cc to: Law and Corporate Affairs (Retail) and Channel
Strategy
Microsoft Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to COMPANY: Software Spectrum, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Volume Licensing Management
With cc: to: General Counsel
Such notices shall be deemed given three (3) business days after being deposited
in the United States mail or one business day after being delivered with an
overnight carrier or by electronic mail.
13. CONFIDENTIALITY
COMPANY expressly undertakes to retain in confidence the terms and conditions of
this Agreement and any applicable addenda and all information and know-how
transmitted to it by MICROSOFT and make no use of such information and know-how
except under the terms and during the existence of this Agreement. COMPANY shall
guarantee and ensure its employees' compliance with this paragraph. COMPANY's
obligations under this paragraph shall survive any termination of this Agreement
and shall extend to the earlier of such time as the information is public domain
or five (5) years following the termination of this Agreement. This Section
shall not prohibit the parties from disclosing such information as is
specifically required by any United States Federal or state or Canadian Federal
or provincial authorities. Notwithstanding the foregoing, COMPANY may disclose
confidential information in accordance with any judicial or other governmental
order or request, provided that COMPANY shall immediately notify MICROSOFT in
writing upon its receipt of such order or request and shall assist MICROSOFT as
is reasonable in seeking any protective order or its equivalent or in limiting
the scope of disclosure of any confidential information.
14. SEVERABILITY
In the event that any provision of this Agreement is found invalid or
unenforceable pursuant to judicial decree or decision, the remainder of this
Agreement shall remain valid and enforceable according to its terms. The parties
intend that the provisions of this Agreement be enforced to the fullest extent
permitted by applicable law. Accordingly, the parties agree that if any
provisions are deemed not enforceable, they shall be deemed modified to the
extent necessary to make them enforceable.
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15. SURVIVAL
Sections 3.3, 5.2, 5.3, 6, 7, 8, 9, 10, 11, 13, 14, and 15 shall survive any
termination of this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement on the dates
indicated below. This Agreement is not binding until executed by MICROSOFT.
MSLI, CP ("MICROSOFT") SOFTWARE SPECTRUM, INC.
("COMPANY")
By /s/ ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- ---------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GENERAL MANAGER WWVLO ------------------------------------
Name (please print)
V.P.
------------------------------------
November 14, 2001
------------------------------------
Date
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SCHEDULE A
ESA REQUIREMENTS, FUNCTIONS AND MINIMUM SERVICE STANDARDS
COMPANY must perform the ESA Requirements described below in accordance with the
following minimum standards and in compliance with the Enterprise Software
Advisor Policies and Procedures Manual provided by MICROSOFT.
1. AGREEMENT TRANSMISSION
A. "TIMELY" means MICROSOFT's receipt of an Enterprise Agreement or
Enterprise Enrollment, executed by the Enterprise Agreement Customer, within
fifteen (15) business days of the date the Enterprise Agreement Customer
executes the Enterprise Agreement or Enterprise Enrollment.
B. "VALID" means MICROSOFT's receipt of an Enterprise Agreement or
Enterprise Enrollment, executed by the Enterprise Agreement Customer, free from
errors in fields completed by the Enterprise Agreement Customer containing all
information required to be completed by the Enterprise Agreement Customer, and
including all associated checklists completed by COMPANY in the form provided by
MICROSOFT.
2. LICENSING SUPPORT CALL CENTER
COMPANY shall maintain a licensing support call center for Enterprise Agreement
Customers which have designated COMPANY as its Enterprise Software Advisor. Such
licensing support call center shall be available to Enterprise Agreement
Customers a minimum of eight (8) hours per day, Monday through Friday.
3. TRUE-UP ACTIVITIES
A. "TIMELY" means MICROSOFT's receipt of an Enterprise Agreement Customer's
True-up report by the date required by MICROSOFT at the beginning of such
Enterprise Enrollment.
B. "VALID" means MICROSOFT's receipt of an Enterprise Agreement Customer's
True-up report containing all information required to be completed by the
Enterprise Agreement Customer and which COMPANY believes to be an accurate
account of such Enterprise Agreement Customer's True-up activity.
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CUSTOMER SEGMENT ESA FUNCTIONS
---------------- -------------
(MINIMUM SERVICE STANDARDS FOR THESE REQUIREMENTS ARE SET FORTH BELOW)
o LEVEL 1 SALES (6,000 + o Timely receipt, signature confirmation and transmission of Valid
DESKTOPS) Enterprise Agreements and Enterprise Enrollments to Microsoft Operations
Centers, including customer assistance with the entry of order
information.
o Receipt and transmission of additional Enterprise Software Product orders
and supplemental media orders to Microsoft Operations Centers.
o Licensing Support Call Center providing phone support of licensing
questions and issues
o Timely receipt and transmission of Valid True-up reporting to Microsoft
Operations Centers, including customer assistance with the entry of
order information
o Tracking and reporting of license purchase history
o LEVEL 2 SALES (750-5,999 o In certain cases, explanation of licensing options to customers
DESKTOPS)
o In certain cases, delivery of non-negotiated agreements to customers
o Timely receipt, signature confirmation and transmission of Valid
Enterprise Agreements and Enterprise Enrollments to Microsoft Operations
Centers, including customer assistance with the entry of order
information
o Receipt and transmission of additional Enterprise Software Product orders
and supplemental media orders to Microsoft Operations Centers
o Licensing Support Call Center providing phone support of licensing
questions and issues
o Timely receipt and transmission of Valid True-up reporting to Microsoft
Operations Centers, including customer assistance with the entry of order
information
o Tracking and reporting license purchase history
o LEVEL 3 SALES (<750 o Explanation of licensing options to customers
DESKTOPS)
o Delivery of non-negotiated agreements to customers
o Timely receipt, signature confirmation and transmission of Valid
Enterprise Agreements and Enterprise Enrollments to Microsoft Operations
Centers, including customer assistance with the entry of order
information
o Receipt and transmission of additional Enterprise Software Product orders
and supplemental media orders to Microsoft Operations Centers
o Licensing Support Call Center providing phone support of licensing
questions and issues
o Timely receipt and transmission of Valid True-up reporting to Microsoft
Operations Centers, including customer assistance with the entry of order
information
o Tracking and reporting license purchase history
Microsoft Corporation Page A-2
Enterprise Software Advisor
Service Agreement
SCHEDULE B
ENTERPRISE SOFTWARE ADVISOR FEES
FEE
LEVEL CUSTOMER SEGMENT ESA FEE
----- ---------------- -------
1 6,000 + DESKTOPS NEW ENROLLMENTS:
* % OF INITIAL ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for pre-sales activity and engagement
o * % for post-sales licensing expertise and support
RENEWING ENROLLMENTS:
* % OF INITIAL RENEWAL ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for post sales licensing expertise and support
FOR ALL ENROLLMENTS:
* % SECOND AND THIRD YEAR ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for post-sales licensing expertise and support and ongoing order management
o * % for True-up activities
* % INCREMENTAL REVENUE
o On all additional desktops and additional product licenses added after signing,
including true up orders and additional product orders.
o Excludes desktops added as a result of mergers, acquisitions, takeovers,
consolidations, combinations or similar transactions
2 750-5,999 NEW ENROLLMENTS:
DESKTOPS
* % OF INITIAL ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for pre-sales activity and engagement
o * % for post sales licensing expertise and support and ongoing order management
RENEWING ENROLLMENTS:
* % OF INITIAL RENEWAL ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for pre-sale activity and engagement
o * % for post sales licensing expertise and support and ongoing order management
ALL ENROLLMENTS:
* % SECOND AND THIRD YEAR ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for post sales licensing expertise and support
o * % for True-up activities
* % INCREMENTAL REVENUE
o On all additional desktops and additional product licenses added after signing,
including true up orders and additional product orders.
o Excludes desktops added as a result of mergers, acquisitions, takeovers,
consolidations, combinations or similar transactions
3 <750 DESKTOPS NEW ENROLLMENTS:
* % OF INITIAL ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for pre-sales activity and engagement
o * % for post sales licensing expertise and support
RENEWING ENROLLMENTS:
* % OF INITIAL RENEWAL ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for pre-sales activity and engagement
o * % for post sales licensing expertise and support
ALL ENROLLMENTS:
* % SECOND AND THIRD YEAR ENTERPRISE SOFTWARE PRODUCT PURCHASES
o * % for post sales licensing expertise and support and ongoing order management
o * % for True-up activities
* % INCREMENTAL REVENUE
o On all additional desktops and additional product licenses added after signing,
including true up orders and additional product orders.
o Excludes desktops added as a result of
mergers, acquisitions, takeovers,
consolidations, combinations or similar
transactions
----------
* Information omitted pursuant to a request for confidential treatment, and the
material has been filed separately with the Securities and Exchange Commission.
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Microsoft Corporation Page B-1
Enterprise Software Advisor
Service Agreement
