EXHIBIT 10.115
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS OF THIS AGREEMENT WHICH HAVE BEEN REDACTED
ARE MARKED WITH BRACKETS "[***]". THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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.
Customer Name: Name of contracting Microsoft Affiliate:
INTERLAND, INC. MSLI, GP
Street Address and/or post office box: Street Address and/or post office box:
000 XXXXXXXXX XXXXXX XXX. 0000 XXXX XXXX, XXXXX 000
Xxxx and State / Province: City and State / Province:
ATLANTA, GA RENO, NV
Country and Postal Code: Country and Postal Code:
30303 USA 00000-0000
Contact Name: Microsoft Account Manager Name, Location and Email
XXXXXXXX FARSI Address:
Phone Number: Phone Number.
[***] [***]
Fan Number: Fax Number:
[***] [***]
E-Mail Address: E-Mail Address:
[***] [***]
For the Attention of: For the Attention of:
CHIEF INFORMATION OFFICER VOLUME LICENSING, DEPT. 551
Microsoft Certified Partner Agreement Number.
Accounts Payable Contact Name,
Phone Number and Email Address:
XXXX XXXXXXX
[***]
CUSTOMER NOTICES INFORMATION (IF DIFFERENT FROM ABOVE): ALL NOTICES MUST ALSO BE SENT TO:
Customer Name, Street Address and/or post office box, Microsoft Corporation, Law and Corporate Affairs
City and State / Province, Country and Postal Code: One Microsoft Way
GENERAL COUNSEL Xxxxxxx, Xxxxxxxxxx XXX 00000
Fax Number: Fax Number:
[***] [***]
For the Attention of: For the Attention of:
LCA- PDM / SPLA Program Attorney
Page 1 of 22
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/ Xxxxxxxx Farsi By (sign): /s/ Xxxxx Xxxxxxxx
---------------------- ------------------------
Name (print): Xxxxxxxx Farsi Name (print): Xxxxx Xxxxxxxx
------------------- ----------------------
Title: Sup., CIO Title: Contract Administrator
-------------------------- ----------------------------
Date: 11/25/02 Effective Date: 11/15/2002
--------------------------- --------------------
Page 2 of 22
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.
Page 3 of 22
"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.
"XXX" 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).
Page 4 of 22
"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.
Page 5 of 22
(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 ("XXXX") 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 XXXX 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 XXXX, then such
software is licensed to you under the terms of the XXXX 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.
Page 6 of 22
(5) Termination of Right. Any termination or expiration
of this Agreement will automatically terminate any
rights granted under this Section 3(g).
(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
Page 7 of 22
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 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 xxx.xxxxxxxxx.xxx/xxxxxxxxxx). You do not have
permission to use any Microsoft logo without a license from
Microsoft. Microsoft logo license information can be obtained
from xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxxx 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.
Page 8 of 22
(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.
(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:
xxxxxxxx@xxxxxxxxx.xxx. 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.
Page 9 of 22
(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.
(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 XXX 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):
Page 10 of 22
[***] - 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: [***], Attention: Special Agreements Fax: [***], Attention: Special Agreements
Payments Payments
E-mail: [***] E-mail [***]
(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").
Page 11 of 22
(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
Page 12 of 22
use of the Software Services; and (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-Xxxx 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,
Page 13 of 22
Microsoft does not waive its right to enforce this Agreement
or to protect its intellectual property by any other means
permitted by law.
(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 XXX 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
Page 14 of 22
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.
(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 ("XXXX"), 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.
Page 15 of 22
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).
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.
Page 16 of 22
(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.
(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.
Page 17 of 22
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
xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxx/.
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 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
Page 18 of 22
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.
(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.
Page 19 of 22
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)
Page 20 of 22
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 UNLESS 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
Page 21 of 22
expressly authorized by [COMPANY]; and (b) you may make copies of
certain Redistribution Software in accordance with Paragraph 4 (Use of
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
xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxxx/.
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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