EXHIBIT 10.13
Microsoft will complete:
Direct Commercial Agreement Number 40000896
Microsoft Direct Commercial Service License Agreement
This Microsoft Direct Commercial Service License Agreement (this
"Agreement") is by and between the Commercial Service Provider which has
executed this Agreement below ("Company") and Microsoft Corporation, a
Washington corporation ("Microsoft").
Overview - Microsoft Direct Commercial Service licensing is a program
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that allows a Commercial Service Provider to copy, and obtain Licenses to use,
Microsoft software products for Commercial Services. A Commercial Service
Provider is responsible for obtaining the necessary media for each Commercial
Use Product it wishes to copy and use. Media may be obtained directly from
Microsoft World Wide Fulfillment or through any reseller as full package
product. A Commercial Service Provider is then permitted to make one or more
copies of each such product pursuant to the terms contained in this Agreement,
subject to an obligation to order one or more Licenses from Microsoft for each
copy. For each License ordered, the Commercial Service Provider will pay
Microsoft the fees outlined in the Microsoft Direct Commercial Price List in
effect at the time the relevant order is submitted to Microsoft. A Commercial
Service Provider is permitted to acquire Licenses for Commercial Services only
and may not acquire Licenses under this Agreement for its internal use or for
the internal use of its Affiliates.
1. Definitions. Unless otherwise defined, all capitalized terms used in this
Agreement shall have the meanings provided below:
"Agreement" shall mean this Direct Commercial Service License Agreement and
any Addenda attached hereto.
"Affiliate" shall mean a company or legal entity which owns or controls, is
owned or controlled by, or is under common ownership or control with, the
Company or Microsoft as applicable.
"Commercial Service Provider" shall mean an individual or entity that
provides Commercial Services to a Third Party. Examples of Commercial
Services are set forth below.
"Commercial Services" shall mean software services provided to Third
Parties such that the Third Party does not have to acquire the Licenses
itself. Commercial Services does not include services provided to Company's
Affiliates for their own internal use. Examples of Commercial Services
include (but are not limited to):
. Services provided as part of an Internet access service for Third
Parties, such as providing online services or Internet access for
consumers or businesses;
. Hosting communications services for Third parties, such as virtual
private network, voice over IP, video conferences, etc.;
. Hosting an E-Commerce, Internet, Intranet and/or Extranet web site(s)
on behalf of a Third Party through either shared or dedicated servers;
. Hosting application services on behalf of a Third Party by providing
file and print, database, messaging or E-Commerce capabilities;
. Hosting software applications on behalf of a Third Party which includes
asset management, software distribution and management, network
management and performance tuning, etc.; and
. Hosting Independent Software Vendor applications where Third Parties'
applications are built on top of Microsoft technology.
"Commercial Use Products" shall mean the Microsoft software products which
Microsoft makes available for Commercial Services to Commercial Service
Providers and which may be reproduced pursuant to this Agreement. The
Direct Commercial Price List will contain the entire list of available
Commercial Use Products. Microsoft may change the list of available
Commercial Use Products at any time, and from time to time, to add or
remove products.
"Commercial Use License Agreement" or "CULA" shall mean the document which
contains the specific terms and conditions pursuant to which use of a
particular Commercial Use Product is subject. This document will be
provided to
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Company by Microsoft or made available to Company by publication on the
World Wide Web at a site identified by Microsoft to Company or made
available to Company by some other means prior to the placement of any
orders.
"Effective Date" shall mean the date his Agreement is signed by Microsoft.
"License" shall mean a right granted by Microsoft to use or access a copy
of a Commercial Use Product (e.g., a Commercial Service Server License)
subject to this Agreement, the CULA(s) for such Commercial Use Product and
the Product List.
"Product List" shall mean the Direct Commercial Service Licensing Product
list, or any subsequent version thereof, which is made available to the
Company by or on behalf of Microsoft from time to time and identifies
specific terms and conditions (in addition to those provided in the CULA(s)
and this Agreement) for particular Commercial Use Products.
"Third Party" shall mean an individual, company or legal entity ("person")
other than (i) an Affiliate, (ii) persons employed by the Company (as an
employee, contractor or in any other capacity), (iii) persons providing
goods or services to the Company (for example, a supplier) or (iv) persons
providing goods or services on behalf of the Company (for example a
distributor or reseller).
2. Ordering of Licenses.
a. Purchase Order and Third Party Information. The Company shall submit
to Microsoft an order for a License for each copy (or access right) of
a Commercial Use Product it has made (or provided) during the
immediately preceding calendar month. Each order shall specify the
country of usage of each copy made (or access right provided) and shall
provide other information relative to Licenses acquired on behalf of
Third Parties. In addition, the order shall contain information on
newly formed contracts between Company and Third Parties for Commercial
Services utilizing Microsoft Commercial Use Products. This order shall
be in the form attached as Addendum A, as such form may be modified by
Microsoft from time to time. The order must be delivered to Microsoft,
on a calendar monthly basis, no later than the 15/th/ day of the month,
whether or not any copies were made or access rights provided in the
preceding month. A Company's failure to submit an order within the
required time frame shall be grounds for termination of this Agreement,
and use rights shall expire for any copies made by the Company pursuant
to this Agreement for which the Company has not ordered and paid. Upon
receipt of Company's order(s) pursuant to this Section 2.a., Microsoft
will issue an invoice indicating the number and type of Licenses to
Commercial Use Products acquired by the Company and reported to
Microsoft during a specified month. Such invoice, together with
proof/record of payment, shall constitute the confirmation for such
Licenses. Any information provided to Microsoft pursuant to this order
shall be used solely for revenue calculation, internal revenue
allocation, and billing purposes and shall not be used to directly
target or otherwise contact Third Party customers of Company without
Company's prior approval.
b. Pricing. The fees for Licenses shall be set by Microsoft from time to
time and shall be set forth on a Direct Commercial Price List which
shall be issued by Microsoft on a monthly basis. Microsoft shall
determine the method of delivery of such Direct Commercial Price List
to Company. Notwithstanding changes to the Direct Commercial Price
List, if Company has contracted with a Third Party customer to provide
Commercial Services and has acquired Licenses for Commercial Use
Products for the benefit of such Third Party customer, Microsoft shall
not increase the fees for the Licenses acquired for the benefit of such
Third Party customer during (i) the period of the existing contract
between Company and such Third Party customer or (ii) twenty-four (24)
months, whichever is shorter.
c. Payment Terms. All amounts are due and owing net thirty (30) days
after date of invoice from Microsoft. All payments not received by
Microsoft from Company within the required time frame may be assessed a
finance charge of two percent (2%) of the invoice amount per month or
the legal maximum, whichever is less. Payment by the Company to
Microsoft is not contingent on payment by a Third Party customer to the
Company. All payments to Microsoft by Company shall be in the form of
bank wire transfer or electronic funds transfer through an Automated
Clearing House ("ACH") with electronic remittance detail attached.
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Payment shall be remitted to:
Wire Transfers*:
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Microsoft Services #844510
Attn: Special Agreement Payments
Account #3750825354
ABA #11100001-2
Nations Bank of Texas NA
Dallas, TX
* Remittance detail must be sent by: Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
Special Agreement Payments
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
d. Fulfillment. Company may obtain the media for Commercial Use Products
from Microsoft World Wide Fulfillment ("WWF") or from any reseller of
full package product. All orders through WWF will require prepayment; no
credit terms will be extended. Contact information for WWF will be
provided at the time this Agreement is executed by Microsoft or as
determined by Microsoft from time to time.
3. License Grants.
a. License to Make and Use Copies. Subject to its obligation to order and
pay for the appropriate number of Licenses is a timely fashion as set
forth in Section 2.a. above, at any time during the term hereof, the
Company may make and use copies of, and provide access to, the
Commercial Use Products. Any such copy may be made only from legally
acquired media as outlined in Section 2.d. above. All copies of
Commercial Use Products made pursuant to this Section must be true and
complete copies, and must include all copyright and trademark notices.
b. Use Terms. Each copy made, or access right provided, pursuant to the
right granted in Section 3.a. above may be used only to provide
Commercial Services to Third Parties subject to and strictly in
accordance with the license grants, terms, conditions, limitations and
restrictions contained in this Agreement and the provisions of the then
most recently released version of the applicable CULA and Product List.
Microsoft may amend any CULA and/or the Product List at any time, and
from time to time; provided, however, that no such change will ever
retroactively alter the terms under which Company may use a copy of a
Commercial Use Product previously licensed to Company. If the
requirements of the preceding sentence have been complied with, the
revised CULA(s) and/or Product List shall take the place of the existing
version(s) as of the effective date identified in the notice, and each
copy of a Commercial Use Product made on or after that date shall be
subject to the terms thereof, as amended. By signing this Agreement,
Company acknowledges that it and its Affiliates have access to the World
Wide Web.
c. Printed Materials. Company may not copy any Microsoft guides, manuals
or other printed materials describing or explaining any of the
Commercial Use Products. The Company may acquire copies of any such
guides, manuals or other printed materials from WWF or from a Microsoft
approved fulfillment source in quantities that do not exceed, with
respect to a Commercial Use Product, the number of Licenses of such
Commercial Use Product the Company has acquired.
4. Evaluation and Testing License. Microsoft hereby grants to Company a
License for up to sixty (60) days after the Effective Date to evaluate and
test the Commercial Use Products on the terms and conditions set forth
below and for no other purpose. Copies of Commercial Use Products for this
purpose shall be obtained as set forth above in Section 2.d. No License fee
shall be due and payable for such evaluation and testing License.
a. License Grant. Company may reproduce, install and use an unlimited
number of copies of the Commercial Use Products within its own
facilities solely to evaluate the Commercial Use Products, subject to
the rights and limitations of Section 4.b. below. The Commercial Use
Products may be connected at any point in time to an unlimited number
of workstations or computers operating on one or more internal Company
networks.
b. Other Rights and Limitations. Company may not reverse engineer,
decompile, or disassemble the Commercial Use Products, except and only
to the extent that such activity is expressly permitted by applicable
law notwithstanding this limitation. Company may not otherwise rent,
lease, or transfer the Commercial Use Products. Microsoft reserves all
rights not expressly granted herein.
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c. NO WARRANTIES. FOR PURPOSES OF THE EVALUATION AND TESTING LICENSE,
THE COMMERCIAL USE PRODUCTS AND ANY RELATED DOCUMENTATION ARE PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR INFRINGEMENT. THE
ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE COMMERCIAL USE
PRODUCTS REMAINS WITH COMPANY.
d. NO LIABILITY FOR DAMAGES. IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS
BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE
USE OF OR INABILITY TO USE THE COMMERCIAL USE PRODUCTS, EVEN IF
MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Facilitating Compliance.
a. Notice to Users. The Company shall use reasonable efforts to make its
employees, agents and other individuals using the Commercial Use
Products under this Agreement aware that the Commercial Use Products
(i) are licensed by Microsoft, (ii) may only be used subject to the
terms and conditions contained in this Agreement and the applicable
CULA(s) and Product List, and (iii) may not be copied, transferred or
otherwise used in violation of such terms and conditions.
b. Audit. During the term of this Agreement and for two (2) years
thereafter. Company agrees to keep all usual and proper records
relating to its reproduction and use of the Commercial Use Products.
Notwithstanding the provisions of any particular CULA(s) and the
Product List, in order to verify Company's compliance with the terms of
this Agreement, during the term of this Agreement and for two (2) years
thereafter, Microsoft may cause (i) an audit to be made of Company's
books and records and/or (ii) an inspection to be made of Company's
facilities and procedure. Any audit and/or inspection shall be
conducted during regular business hours at Company's facilities, with
at least three (3) days' notice, and in such a manner as not to
interfere unreasonably with the operations of the Company. Any audit
shall be conducted by an independent certified public accountant
selected by Microsoft (other than on a contingent fee basis). Company
agrees to provide Microsoft's designated audit or inspection team
access to the relevant Company records and facilities. In any event,
the Company shall promptly acquire sufficient Licenses to permit all
usage disclosed by any such audit. In addition, if any such audit
discloses material unlicensed use of Commercial Use Products, Company
shall pay to Microsoft an amount equal to: (i) the reasonable expenses
incurred in conducting such audit; plus (ii) an additional License fee
of twenty percent (20%) of the estimated retail price established by
Microsoft of the Licenses required to be acquired pursuant to the
preceding sentence. For purposes of this section, "material unlicensed
use of Commercial Use Products" shall exist if, upon audit, it is
determined that, with respect to any Commercial Use Product the Company
has Licenses for fewer than ninety-five percent (95%) of the copies
disclosed by the audit. Microsoft shall use the information obtained or
observed in the audit solely for the purposes of (x) determining
whether the Company has sufficient Licenses for the Commercial Use
Products it is using and has otherwise complied with the terms of this
Agreement, (y) enforcing its rights under this Agreement and any
applicable laws, and (z) determining if customer has accurately
reported Third Party contract information to Microsoft. Microsoft will
hold all such information in confidence.
6. Support. This Agreement does not include technical or integration support
by Microsoft to Company or Company's Third Party customers. Company is
strongly encouraged to sign a Microsoft Consulting Services Agreement to
address the technical requirements needed to provide Commercial Services
using Microsoft technology. Company agrees to provide commercially
reasonable telephone support to Third Party customers and, in connection
therewith, is required to obtain technical support by means of a separate
agreement with Microsoft, a Microsoft Affiliate, a Microsoft Authorized
Support Center, or a Microsoft Solution Provider. Nothing in this provision
shall be deemed to obligate Microsoft or a Microsoft Affiliate to provide
such technical support. Company must indicate its intentions with regard to
technical support on the Company Information section provided beneath the
parties' respective signatures below.
7. Term; Termination.
a. Term. Company may obtain Licenses for Commercial Use Products under the
terms of this Agreement following the Effective Date through June 30,
2001 (the "Term") unless this Agreement is otherwise terminated as
provided below. Notwithstanding the Term, if this Agreement has not
been terminated by Microsoft as a result of Company's breach and if
Company has contracted with a Third Party customer to provide
Commercial Services, Microsoft shall
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extend to Company the right to continue offering the Licenses required
to support such Third Party customer for the existing contract period
between Company and its Third Party customer or twenty-four (24)
months, whichever is shorter.
b. Termination. Either party may terminate this Agreement for cause, as
a result of a breach by the other party of any of the terms and
conditions of this Agreement, upon thirty (30) days' prior written
notice advising the breaching party of the nature of the breach,
provided that such breach is not thereafter cured within such thirty
(30) day period. Notwithstanding the foregoing, a breach by Company of
Section 3.b., 8 or 9.c. of this Agreement or a breach in a material
respect of any provision of the CULA(s) and/or Product List shall
constitute grounds for immediate termination of this Agreement, upon
written notice and without an opportunity to cure.
c. Obligations on Termination or Expiration. Except as provided in
Section 7.a., termination or expiration of this Agreement shall
automatically terminate the rights of Company under it, including the
right to make and use additional copies of Commercial Use Products
pursuant to the terms of this Agreement. Upon termination or expiration
of this Agreement, Company shall immediately submit an order for any
Licenses based on actual usage to the date of such termination or
expiration which have not been previously ordered and which by the
terms of the CULA(s) and/or Product List are required to be ordered
after the month of actual usage, such as Commercial Service Access
Licenses. Licenses ordered by Company and for which Company has paid
prior to the termination or expiration of this Agreement shall
continue, and expire if appropriate, according to their terms
notwithstanding the termination or expiration of this Agreement.
Notwithstanding the foregoing, upon termination of this Agreement as
a result of the Company's breach (and not as a result of any other
termination or expiration), Company shall deliver to Microsoft, or at
Microsoft's direction, destroy (and have all Third Party customers
destroy, if applicable), all units of Commercial Use Products for which
Licenses were acquired pursuant to this Agreement. There shall be no
refund of amounts paid for Commercial Use Products which have been so
returned or destroyed.
8. Prohibition on Assignment. Except as provided in Section 9.c., this
Agreement, and any rights or obligations hereunder, shall not be assigned,
sublicensed or otherwise transferred by Company, whether by contract,
merger, operation of law, or otherwise, without the prior written approval
of Microsoft. Microsoft may transfer its respective rights and obligations
hereunder to any Affiliate without the prior written approval of Company;
provided that Microsoft shall remain liable, in accordance with this
Agreement, for all Licenses it has provided or was obligated to have
provided prior to the date of transfer. Any prohibited assignment is null
and void.
9. Miscellaneous.
a. Entire Agreement. This Agreement, including any Addenda attached
hereto and the CULA(s), the Product List and the Direct Commercial
Price List in effect from time to time and Licenses obtained hereunder,
once accepted by Microsoft as evidenced by Microsoft's signature and
the issuance of a Direct Commercial License Agreement Number,
constitutes the entire agreement between Microsoft and the Company
concerning the subject matter hereof and merges all prior and
contemporaneous communications with respect to such subject matter. The
terms and conditions of these documents shall control over any
provisions in any purchase order. To the extent that there is any
direct inconsistency between the terms contained in this Agreement and
the CULA(s) and/or Product List, the terms of this Agreement shall
control. Similarly, to the extent that there is any direct
inconsistency between the terms contained in the Product List and the
CULA, the terms of the Product List shall control. For the avoidance of
doubt, in the event that a subject or a particular use is addressed in
a provision in the CULA or the Product List and not in the Agreement,
such provision in the CULA or Product List, as applicable, shall
control. Except for the Direct Commercial Price List, CULA(s) and
Product List, any representations, promises or conditions in connection
with this Agreement not in writing signed by all affected parties shall
not be binding. This Agreement, other than the Direct Commercial Price
List, CULA(s) and Product List, may only be changed by a written
instrument signed by both parties. The CULA(s) and Product List may be
amended by Microsoft as provided in Section 3.b. above and the Direct
Commercial Price List may be amended by Microsoft as provided in
Section 2.b. above.
b. Notices. All notices, authorizations and requests in connection with
this Agreement shall be deemed given on the day they are (i) deposited
in the mail, postage prepaid, certified or registered, return receipt
requested; or (ii) sent by air express courier (e.g., DHL, Federal
Express, Airborne), charges prepaid, confirmation requested; and
addressed as provided beneath the parties' respective signatures below.
c. Sublicense, Transfer or Assignment of Licenses.
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i. Applicability. The rights set forth in this Section 9.c. apply only
with respect to Licenses which are perpetual; that is, acquired by means of
a one-time License fee as opposed to a monthly or other periodic License
fee.
ii. To Affiliates. Subject to the requirements identified in Section
9.c.v. below, Company may sublicense, transfer or assign Licenses acquired
under this Agreement to an Affiliate, but not to any person or entity other
than an Affiliate. The Company shall be responsible for all acts and
omissions of the Affiliates to which it sublicenses, transfers or assigns
Licenses. The Company shall require any Affiliate to whom Company has
sublicensed, transferred or assigned Licenses to notify the local Microsoft
subsidiary in the country where such Affiliate will be using the Commercial
Use Products that such sublicense, transfer or assignment has occurred, or
begun to occur.
iii. Pursuant to A Merger, Consolidation or Divestiture. Subject to the
requirements identified in Section 9.c.v. below, the Company (with respect
to its validly-acquired Licenses) or any Affiliate to which the Company has
sublicensed, transferred or assigned validly-acquired Licenses pursuant to
the preceding paragraph, may transfer such Licenses to any Third Party
pursuant to a merger, consolidation or other corporate/organizational
divestiture or acquisition, without the written consent of Microsoft.
iv. With Consent. Except as provided in Sections 9.c.ii. and iii. above,
Company may not sublicense, transfer or assign any Licenses without the
prior written consent of Microsoft, and any such sublicense, transfer or
assignment shall be null and void.
v. Limitations and Requirements. Company may not sublicense, transfer
or assign a License to any party unless (x) it transfers all of the licensed
Commercial Use Product (including all component parts, the media and printed
materials, any upgrades, the invoice from Microsoft evidencing the rights
being transferred, the proof/record of payment and, if applicable, the
Certificate of Authenticity); (y) the recipient agrees in writing to the
terms of the applicable CULA(s) and Product List and of Sections 5 and 9 of
this Agreement (in which event such recipient shall be bound by all
limitations and restrictions to the same extent as if it was the "Company");
and (z) the recipient certifies that it will use such Commercial Use
Products for Commercial Services and not for internal use. If the Company
sublicenses, transfers or assigns its rights in one or more Licenses
identified on any invoice to one or more of its Affiliates, then it shall
provide a copy of such invoice and proof/record of payment, to each such
Affiliate, identifying the number and type of Licenses which have been
sublicensed, transferred or assigned. If the Commercial Use Product is an
upgrade, any sublicense, transfer or assignment must include all prior
versions of the Commercial Use Product. A Company or Affiliate may not
sublicense, transfer or assign Licenses on a short-term basis.
d. Taxes.
i. The amounts to be paid by Company to Microsoft herein do not include
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 this Agreement
including, without limitation, 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 Company by Microsoft under this
Agreement, regardless of whether the same are separately stated by
Microsoft. All such taxes (and any penalties, interest, or other additions
to any such taxes), with the exception of taxes imposed on Microsoft's net
income or with respect to Microsoft's property ownership, shall be the
financial responsibility of Company. Company agrees to indemnify, defend and
hold Microsoft harmless from any such taxes or claims, causes of action,
costs (including, without limitation, reasonable attorneys' fees) and any
other liabilities of any nature whatsoever related to such taxes.
ii. Company will pay all applicable value added, sales and use taxes and
other taxes levied on it by a duly constituted and authorized taxing
authority on the software or other products provided under this Agreement or
any transaction related thereto in each country in which the services and/or
property are being provided or in which the transactions contemplated
hereunder are otherwise subject to tax, regardless of the method of
delivery. Any taxes that (i) are owed by Company as a result of entering
into this Agreement and the payment of the fees hereunder, (ii) are required
or permitted to be collected from Company by Microsoft under applicable law,
and (iii) are based upon the amounts payable under this Agreement (such
taxes described in (i), (ii), and (iii) above the "Collected Taxes'), shall
be remitted by Company to Microsoft, whereupon, upon request, Microsoft
shall provide to Company tax receipts or other evidence indicating that such
Collected Taxes have been collected by Microsoft and remitted to the
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appropriate taxing authority. Company may provide to Microsoft an exemption
certificate acceptable to Microsoft and to the relevant taxing authority
(including without limitation a resale certificate) in which case, after the
date upon which such certificate is received in proper form, Microsoft shall
not collect the taxes covered by such certificate.
iii. Notwithstanding any provision herein to the contrary, Customer
agrees that each payment to be made to Microsoft hereunder shall be free of
all withholding taxes imposed by any jurisdiction, and if any such
withholding is required, Customer shall pay an additional amount such that
after deduction of all amounts required to be withheld, the net amount of
the payment will equal, on an after tax basis, the amount of the payment
that would be due absent such withholding.
iv. 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.
e. Governing Law. This Agreement shall be construed and controlled by the laws
of the State of Washington.
f. Survival. Provisions of Sections 2c., 3.b., 4.b., c. and d., 5., 7.a. and c.
and 9 of this Agreement, the applicable CULA(s) and Product List for any
fully-paid up Licenses, and warranty, limitation on liability and
indemnification provisions in the CULA(s) and Product List for Licenses
acquired pursuant to this Agreement, shall survive the termination or
expiration of this Agreement.
g. Attorneys Fees. If either party employs attorneys to enforce any rights
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees, costs and other
expenses.
h. Confidentiality. The terms and conditions of this Agreement are
confidential. Neither party shall disclose such terms and conditions, nor
the substance of any discussions that led to them, to any Third Party other
than an Affiliate or agent, or financial or legal advisors who have a need
to know such information and who have been instructed that all such
information is to be handled in strict confidence.
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The undersigned Company represents and warrants that it will be providing
Commercial Services as defined above and therefore qualifies as a Commercial
Service Provider, and agrees to the terms and conditions of this Agreement.
This Agreement does not constitute an offer by Microsoft and is not legally
binding until executed by each party. All fields must be completed by Company in
order for Microsoft to accept and execute this Agreement.
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Name of Company: Name of Microsoft:
ebaseOne Corporation Microsoft Corporation
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/s/ [ILLEGIBLE] for
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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(signature) (signature)
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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(printed) (printed)
Title: President and CEO Title: Group Manager
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(printed) (printed)
Date: 10/28/99 Date: Nov 4, 1999
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This Agreement and attached documents Microsoft Corporation Telephone Number (area code-phone number):
should be sent to the following address for One Microsoft Way (▇▇▇) ▇▇▇-▇▇▇▇
processing and approval: ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Facsimile Number (area code-phone number):
Attention: (▇▇▇) ▇▇▇-▇▇▇▇
Special Agreements, Dept. 551
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As provided in Section 9.b above, notices required or permitted under this
Agreement should be addressed to the contact and locations outlined below. If
the information below changes during the term of the Direct Commercial Service
License Agreement, each party will notify the other party in writing on company
letterhead:
Company Information Microsoft Information
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Commercial Service Provider Name Microsoft Corporation
EBASE ONE CORP.
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Street Address and/or post office box Street Address and/or post office box
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ One Microsoft Way
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City and State/Province City and State/Province
HOUSTON TX REDMOND, WA
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Country and Postal Code Postal Code
USA 77057 98052-6399
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Contact Name and title Attention
▇▇▇▇▇▇ ▇▇▇▇▇ Special Agreements, Dept. 551
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Phone Number Phone Number
7l3-975-8700 (425) 882-880
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Fax Number Fax Number
▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
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E-Mail Address
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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ALL NOTICES should have Copy To:
Microsoft Corporation
Law and Corporate Affairs
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: U.S. Legal
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And to:
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Microsoft Account Manager Name
▇▇▇▇ MAPLE ▇▇▇▇▇▇
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Office Location
22/5052
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E-mail Address (if applicable)
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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Company Information regarding Technical Support (check one or more boxes):
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[_] Company intends to sign a Microsoft Consulting Services
Agreement with Microsoft
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[x] Company intends to sign a Premier Support Agreement with
Microsoft, or equivalent offering from Microsoft
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[_] Company intends to sign a service/support agreement with
a Microsoft Solution Provider or Authorized Support Center
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Page 9 of 10
ADDENDUM A - SAMPLE ORDER FORM
Direct Commercial Service License Order
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Company Name: _____________________________
Agreement Number: _____________________________
Report for the Month Ending: _____________________________
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Third Party Third Party
Microsoft Third Party Agreement Agreement
Line Part Number Product Usage Country Quantity Unit Price Extended Third Party Agreement Start Date End Date
Description Price Name/Address Number w/Co.
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1
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2
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3
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4
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5
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6
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7
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8
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9
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10
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13
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The undersigned hereby certifies that to the best of his/her knowledge that this
Direct Commercial Service License Order for the Direct Commercial Service
License Agreement between Microsoft and Company is true and accurate.
______________________ Signature This report should be sent to one
of the following:
______________________ Printed Name Address:
Microsoft Corporation
______________________ Title Attention: Special Agreement
Reporting - Dept. 551
______________________ Date One Microsoft Way
______________________ Telephone Number ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
______________________ Email address Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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Page 10 of 10
