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EXHIBIT 10.23
MICROSOFT WILL COMPLETE:
Agreement Number [ ]
MICROSOFT APPLICATION SERVICES AGREEMENT
This Microsoft Application Services Agreement (this "Agreement") is by and
between the Application Service Provider which has executed this Agreement below
("Company") and MSLI, LLC ("Microsoft"), a Nevada limited liability company and
wholly-owned subsidiary of Microsoft Corporation.
INTRODUCTION. The purpose of this Agreement is to establish a procurement
framework whereby Company may obtain and license various Microsoft products to
use in connection with Company's application service offerings. This Agreement
must be read in conjunction with separate Microsoft license agreements which
detail the rights pursuant to which Company may utilize specified Microsoft
products and a Microsoft price list setting forth the fees for such license
rights. Subject to the limitations in this Agreement, Microsoft may revise the
license agreements and price list to address changes in and new releases of the
Microsoft products made available to Company during the term of this Agreement.
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS. Unless otherwise defined, all capitalized terms used in this
Agreement shall have the meanings provided below:
"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.
"APPLICATION SERVICES LICENSE AGREEMENT" OR "ASLA" shall mean the document
which contains the specific terms and conditions pursuant to which use of a
particular Hosted Product is subject.
"APPLICATION SERVICE PROVIDER" shall mean an individual or entity that
provides Application Services to a Third Party.
"APPLICATION SERVICES" shall mean software services provided to a Third
Party such that the Third Party need not acquire its own Licenses.
Application Services do not include services provided to Company's
Affiliates for their own internal use. Examples of Application 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;
- 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; and
- Hosting Independent Software Vendor applications where Third Parties'
applications are built on top of Microsoft technology.
"EFFECTIVE DATE" shall mean the date this Agreement is signed by Microsoft.
"HOSTED PRODUCTS" shall mean the Microsoft software products Microsoft
makes available for Application Services to Application Service Providers
and which may be reproduced pursuant to this Agreement. The term "Hosted
Products" shall include all upgrades to such Microsoft Software products
released during the Term of this Agreement and any extension thereof for
particular Company customer agreements as described in Section 7.a.
"MICROSOFT FULFILLMENT" shall mean a Microsoft-authorized distributor of
media containing Hosted Products ??? printed materials.
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"LICENSE" shall mean a right granted by Microsoft to use or access a copy of a
Hosted Product (e.g., a Hosted Server License) subject to this Agreement and the
ASLA for such Hosted Product.
"TERM" shall have the meaning assigned to such term in Section 7.a.
"THIRD PARTY" shall mean an individual, company or legal entity ("person") other
than (i) an Affiliate, (ii) Company employees and third party contractors
performing temporary services on behalf of Company, (iii) persons providing
goods or services to the Company (e.g., a supplier) or (iv) persons providing
goods or services on behalf of the Company (e.g., a distributor or reseller).
2. LICENSES.
a. HOSTED PRODUCTS. Subject to its obligation to order and pay for the
appropriate number of Licenses in a timely fashion as set forth in
Section 3.a., Company may, during the Term, make and use copies of,
and provide access to, the Hosted Products strictly in accordance with
the license grants, terms, conditions, limitations and restrictions
contained in the applicable ASLA in effect from time to time.
Microsoft shall make the then current ASLA 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 reasonable means
prior to the placement of any orders. Microsoft may amend the ASLA
upon thirty (30) days prior written notice; provided, however, no such
changes will retroactively alter the terms under which Company may use
a copy of a Hosted Product previously licensed to Company. Notice of
changes to the ASLA may be provided to Company via e-mail or other
reasonable means determined by Microsoft. If the requirements of the
preceding sentences have been complied with, the revised ASLA shall
take the place of the existing version as of the effective date
identified in the notice, and each copy of a Hosted Product made on or
after that date shall be subject to terms thereof, as amended. By
signing this Agreement, Company acknowledges that it and its
Affiliates have access to the World Wide Web.
b. PRINTED MATERIALS. Company may not copy any Microsoft guides, manuals
or other printed materials describing or explaining any of the Hosted
Products. The Company may acquire copies of any such guides, manuals
or other printed materials from Microsoft Fulfillment in quantities
that do not exceed, with respect to a Hosted Product, the number of
Licenses of such Hosted Product the Company has acquired.
3. 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 Hosted 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 Application
Services utilizing Hosted 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 electronically
to the e-mail address noted on the sample order form attached as
Addendum A. This order must be submitted to Microsoft each month,
within fifteen (15) days following the end of the calendar 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 license rights shall not exist for any copies made by
the Company pursuant to this Agreement for which the Company has not
ordered and paid in accordance with this Agreement. Upon receipt of
Company's order(s) pursuant to this Section 3.a., Microsoft will issue
an invoice indicating the number and type of Licenses for Hosted
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 in 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 Hosted Product Price List which
shall be issued by Microsoft on a monthly basis. Price changes shall
require a minimum of thirty (30) days notice prior to being
effective. Microsoft may provide such notice to Company by posting
the changes on the World Wide Web. By signing this Agreement, Company
acknowledges that it and its Affiliates have access to the World Wide
Web. Notwithstanding changes to the Hosted Product Price List, if
Company has contracted with a Third Party customer to provide
Application Services and has acquired Licenses for Hosted
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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.
Payment shall be remitted to:
WIRE TRANSFERS*;
Microsoft Services #844510
Attn: Volume Licensing
Account # 3750825354
ABA #11100001-2
Nations Bank of Texas NA
Dallas, TX
*Remittance detail must be sent by: Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Special
Agreements Payments
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
d. FULFILLMENT. Company may obtain the media for Hosted Products from
Microsoft Fulfillment or from any reseller of full package product.
All orders through Microsoft Fulfillment will require prepayment; no
credit terms will be extended. Contact information for Microsoft
Fulfillment will be provided at the time this Agreement is executed by
Microsoft or as determined by Microsoft from time to time.
4. SCOPE OF DISTRIBUTION; FEEDBACK. This Agreement has been made available to
Company as part of a limited-duration Microsoft pilot program. During this
period, Microsoft intents to evaluate the impact of the pilot program on end
user satisfaction and other Microsoft channels. Accordingly, Company agrees
to:
a. Notify Microsoft via e-mail to ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ and obtain
Microsoft's approval prior to offering Hosted Products as part of
Company's Application Services to any Third Party with greater than
2,500 desktops and/or which has a current Enterprise Agreement or
Select Agreement in effect with Microsoft;
b. Limit agreements for Company's Application Services which include
Hosted Products to no more than ten (10) Third Parties and 25,000
desktops, each limitation in the aggregate, during the Term;
c. Discuss with Microsoft the evolution of the Applications Services
market and Company's role in such market (e.g., the discussions may
take the form of conference calls or on-site visits by Microsoft
representatives during which a senior Company marketing and/or
technical manager is made available);
d. Report the following statistics to Microsoft on a monthly basis
utilizing the report form attached as Addendum B:
i. the number of Application Services customers lost each month
divided by the total cumulative number of customers being
serviced;
ii. the average length of customer engagement; and
iii. peak usage per month per server in each server product category;
e. Within sixty (60) days of the Effective Date or once Company has
signed five (5) agreements with Third Parties for Application
Services, whichever occurs first, facilitate discussions with at least
five (5) representatives of such Third Parties (or potential Third
Party customers) who can provide business and technical insight
regarding their decision to acquire Application Services (e.g., the
discussions may take the form of jointly-funded anonymous focus
groups); and
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f. Within thirty (30) days of the Effective Date and thereafter by the
end of each calendar quarter during the Term, have five to ten
customers on an anonymous basis complete a Microsoft-provided survey
regarding their use of Application Services and Hosted Products.
5. SUPPORT. This Agreement does not include technical or integration support
by Microsoft to Company or Company's Third Party customers. Company agrees
to provide commercially reasonable telephone support to Third Party
customers and, in connection therewith, must either (i) obtain and
continuously maintain a Microsoft Premier support services agreement, or
(ii) obtain support services through the Microsoft Professional support
program with prepayment for at least ten (10) incidents (or obtain similar
support for Hosted Products from another support services provider).
6. FACILITATING COMPLIANCE.
a. NOTICE TO USERS. The Company shall use reasonable efforts to make its
employees, agents and other individuals using the Hosted Products under
this Agreement aware that the Hosted Products (i) are licensed by
Microsoft, (ii) may only be used subject to the terms and conditions
contained in this Agreement and the applicable ASLA, and (iii) may not
be copied, transferred or otherwise used in violation of such terms and
conditions. Upon request, Microsoft shall provide Company a form of
notice which may be used to satisfy this requirement with respect to
use of or access to Hosted Products by Company customers and their end
users.
b. AUDIT. During the Term and for two (2) years thereafter. Company
agrees to keep all usual and proper records relating to its
reproduction and use of the Hosted Products. Notwithstanding the
provisions of the applicable ASLA, in order to verify Company's
compliance with the terms of this Agreement, during the Term 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 procedures. Microsoft may cause an audit to be
made only one time per twelve (12) month period so long as no material
unlicensed use of Hosted Products is found to exist. Should any
material unlicensed use of Hosted Products be found during an audit,
then Microsoft may perform another audit within the same twelve (12)
month period. 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). Prior to an audit, Micrsoft will enter
into a non-disclosure agreement with the independent public accountant
performing the audit that will obligate such independent public
accountant to hold in confidence any of Company's or Company
affiliates' confidential information, including any unrelated
financial, business and technical information observed in the course of
the audit. Company agrees to provide Microsoft's designated audit or
inspection team access to the relevant Company records and facilities.
Company shall promptly acquire sufficient Licenses to cover all usage
disclosed by any such audit. In addition, if any such audit discloses
material unlicensed use of Hosted 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 price established by Microsoft (as set forth on
the then current Hosted Product Price List) of the Licenses required to
be acquired pursuant to the preceding sentence. For purposes of this
section, "material unlicensed use of Hosted Products" shall exist if,
upon audit, it is determined that, with respect to any Hosted Product
the Company has Licenses for fewer than ninety-five percent (95%) of
the copies made or access rights provided which are 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 Hosted 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 Company has accurately reported Third Party contract
information to Microsoft. Microsoft will hold all such information in
confidence.
7. TERM; TERMINATION.
a. TERM. Company may obtain Licenses for Hosted Products under the terms
of this Agreement following the Effective Date through June 30, 2000
(the "Term") unless this Agreement is otherwise terminated as provided
below. Notwithstanding the foregoing, 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 Application
Services, the Term shall be extended solely for the purpose of enabling
Company 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.
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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 such breach is not thereafter cured within such thirty (30)
day period. In the event Company fails to (i) obtain within sixty (60)
days of the Effective Date and thereafter maintain Microsoft Certified
Solution Provider "partner" status; (ii) at all times during the Term
to employ at least two Microsoft Certified Solution Engineers, one
Microsoft Certified Database Administrator and one Microsoft Certified
Solutions Developer; or (iii) complete a Microsoft Data Center and
Service Readiness Assessment within ninety (90) days of the Effective
Date for existing data centers and prior to completion for new data
centers, Microsoft may terminate this Agreement upon thirty (30) days'
prior written notice, provided such requirements are not thereafter
met within such thirty (30) day period. Notwithstanding the foregoing,
a breach by Company of Section 8 or a breach in a material respect of
any provision of the ASLA 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 Hosted Products pursuant to
the terms of the ASLA. 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
ASLA are required to be ordered after the month of actual usage, such
as Hosted Subscriber 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 or
expiration of this Agreement or at the end of any extension provided
in Section 7.a. with respect to a particular Third Party customer),
Company shall deliver to Microsoft, or at Microsoft's direction,
destroy (and have all Third Party customers destroy, if applicable),
all units of Hosted Products which were installed or copied pursuant
to this Agreement. There shall be no refund of amounts paid for Hosted
Products which have been so returned or destroyed.
8. PROHIBITION ON ASSIGNMENT. 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, which approval shall not
be unreasonably withheld. 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. WARRANTIES.
a. YEAR ▇▇▇▇ ▇▇▇▇▇▇▇▇. For purposes of this section, "Year 2000 Warranted
Product" means the specific version of each Hosted Product identified
in the Product Guide on the Effective Date, by version number and
language, as "compliant" or "compliant with minor issues", and any new
products (including new versions of Hosted Products) commercially
released after the Effective Date; and "Product Guide" means the
Microsoft Year 2000 Product Guide located on the Microsoft Year 2000
Resource Center web page (▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/). Microsoft
warrants that each Year 2000 Warranted Product, when run with accurate
date data and in accordance with its documentation and the
recommendations and exceptions set forth in the Product Guide, will
recognize the year 2000 as a leap year and will not produce material
errors processing date data in connection with the year change from
1999 to 2000, as long as, and only to the extent that, all other
information technology used in combination with such Year 2000
Warranted Product (e.g., software, firmware, hardware) properly
exchanges date data with it. This warranty does not extend or apply to
user customizable features or Third Party add-on features or products,
including items such as macros and custom programming or formatting
features. If Company reports to Microsoft on or before June 1, 2000
that a Year 2000 Warranted Product does not meet this warranty,
Microsoft will: (i) exercise reasonable efforts to correct any
material non-compliance which is generally reported by other users;
and (ii) provide any resulting correction to Company, without charge,
when it is available for distribution. This is Company's exclusive
remedy for any failure of a product to function as described in this
Section 9, or for any other Year 2000-related failure of a Hosted
Product.
b. ACCEPTANCE AND LIMITED WARRANTY. Microsoft warrants that each of the
Hosted Products conforms substantially to the Hosted Product end user
documentation.
i. If any Hosted Product fails to conform substantially to the
Hosted Product documentation, then within thirty (30) days after
Microsoft's delivery to Company of each release of a Hosted
Product licensed hereunder,
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Company may report such deviations from the documentation
("Deviations") to Microsoft in writing. If Company reports
any Deviations prior to acceptance, then Microsoft shall have
sixty (60) days to correct such Deviations. Upon delivery of a
corrected release of the Hosted Product to Company, Company
shall have thirty (30) days in which to reject the Hosted
Product for failure to meet Hosted Product end user
documentation. If Company does not so reject, it shall be
deemed to have accepted the Hosted Product.
ii. If Company does not report Deviations within the applicable
thirty (30) day period described in Section 9.b.i., or if
Company uses the Hosted Product in connection with a customer
for revenue, Company shall be deemed to have accepted the
Hosted Product. If Microsoft fails to correct Deviations prior
to acceptance, then as Company's sole remedy Company may
terminate this Agreement with respect to such release of a
Hosted Product.
iii. If following acceptance of a Hosted Product, but during the
term of this Agreement, Company reports any significant
Deviations, and such Deviations have been already reported, or,
after Company's report, are reported commonly by other
Microsoft licensee's and are acknowledged by Microsoft, then as
Company's sole remedy, Microsoft agrees to use commercially
reasonable efforts to correct such Deviations and provide
corrections to Company at such time as Microsoft makes such
corrections generally available to other Microsoft licensees.
c. DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN SECTIONS 9.a. AND
9.b., TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT
AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS,
EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO,
ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF
FITNESS FOR A PARTICULAR PURPOSE, OF LACK OF VIRUSES, OF ACCURACY OR
COMPLETENESS OF RESPONSES, OF RESULTS, AND OF LACK OF NEGLIGENCE OR
LACK OF WORKMANLIKE EFFORT, ALL WITH REGARD TO THE HOSTED PRODUCTS.
ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT,
QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT
WITH REGARD TO THE HOSTED PRODUCTS. THE ENTIRE RISK AS TO THE
QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE, IF
ANY, REMAINS WITH COMPANY.
10. DEFENSE OF COPYRIGHT INFRINGEMENT CLAIM.
a. Microsoft will defend Company and any Company Affiliate against a
claim by an unaffiliated third party that any Hosted Product
infringes its copyright and pay the amount of any resulting adverse
final judgment (or settlement to which Microsoft consents):
provided Company notifies Microsoft promptly in writing of the
claim and gives Microsoft sole control over its defense or
settlement. Company agrees to provide Microsoft with reasonable
assistance in defending the claim.
b. Microsoft will not be liable for any copyright infringement claim
to the extent that the claim is based on Company's (i) running of
the Hosted Product after Microsoft notifies Company to discontinue
running due to such a claim; or (ii) combining the Hosted Product
with a non-Microsoft product, program or data if such claim would
not have arisen but for such combination; or (iii) altering the
Hosted Product if such claim would not have arisen but for such
alteration. Company will reimburse Microsoft for any costs or
damages that result from these actions.
c. If Microsoft receives information concerning a copyright
infringement claim related to a Hosted Product, Microsoft may, at
its expense and without obligation to do so, either (i) procure for
Company the right to continue to run the allegedly infringing Hosted
Product, or (ii) replace or modify the Hosted Product to make it
non-infringing, in which case, Company must stop running the
allegedly infringing Hosted Product immediately.
d. If any other third party claim is brought against Company or any of
Company's Affiliates regarding intellectual property of Microsoft,
Company must notify Microsoft promptly. Microsoft may, at its
option, choose to treat these claims in the same way as Microsoft
treats a copyright infringement claim.
11. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. To the
maximum extent permitted by applicable law, in no event shall either party
or its suppliers be liable for any special, incidental, indirect, or
consequential damages whatsoever (including, but not limited to, damages
for loss of profits or confidential or other information, for business
interruption, for personal injury, for loss of privacy, for failure to
meet any duty including of good faith or of reasonable care, for
negligence, and for any other pecuniary or other loss whatsoever) arising
out of or in any way related to the use of or inability to use the Hosted
Products, or otherwise under or in connection with any provision of this
Agreement, even in the event of the fault, tort (including negligence),
strict liability, breach of contract
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or breach of warranty of Microsoft or any supplier, and even if the injured
party or any supplier has been advised of the possibility of such damages;
provided however that the exclusion of consequential damages shall not apply
with regard to the extent of Section 10.
12. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that
Company might incur for any reason whatsoever (including, without
limitation, all damages referenced above and all direct or general
damages), the entire liability of Microsoft and any of its suppliers
under any provision of this Agreement and Company's exclusive remedy
for all of the foregoing (except for any remedy of repair or replacement
elected by Microsoft with respect to any breach of the Limited Warranty)
shall be limited to the greater of the amount actually paid by Company
for the Hosted Products or U.S. $250,000. The foregoing limitations,
exclusions and disclaimers (including Sections 9.c. and 11 and this
Section 12) shall apply to the maximum extent permitted by applicable
law, even if any remedy fails its essential purpose.
13. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement, including any Addenda attached
hereto and the ASLA and the Hosted Product 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 an
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 ASLA, the terms of this Agreement shall control. For the avoidance
of doubt, in the event that a subject or a particular use is addressed
in a provision in the ASLA and not in the Agreement, such provision in
the ASLA shall control. Except for the Hosted Product Price List and
ASLA, 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 Hosted Product Price List,
ASLA, may only be changed by a written instrument signed by both
parties. The ASLA may be amended by Microsoft as provided in Section
2.b. and the Hosted Product Price List may be amended by Microsoft as
provided in Section 3.b.
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; (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; or (iii) sent via e-mail to the e-mail address for
Company provided below in the case of changes to the ASLA; or
(iv) posted on the World Wide Web in the case of changes to the
Hosted Product Price List.
c. 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 on 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 laws, 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 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
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upon which such certificate is received in proper form. Microsoft shall not
collect the taxes covered by such certificate.
iii. If, after a determination by foreign tax authorities, any taxes
are required to be withheld, on payments made by Company to Microsoft,
Company may deduct such taxes from the amount owed Microsoft and pay them
to the appropriate taxing authority; provided however, that Company shall
promptly secure and deliver 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. Company will make certain that any taxes withheld
are minimized to the extent possible under applicable law.
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.
d. GOVERNING LAW. This Agreement shall be construed and controlled by the
laws of the State of Washington.
e. SURVIVAL. Provisions of Sections 3.c., 6, 7.a. and c., 9.c., 11, 12 and 13
of this Agreement and the applicable ASLA for any fully-paid up Licenses
shall survive the termination or expiration of this Agreement.
f. 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.
g. 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.
i. PUBLIC ANNOUNCEMENTS. Company shall not make any public announcement about
this Agreement without the written consent of Microsoft, which consent
shall not be unreasonably withheld or delayed. The foregoing, however,
shall not limit Company in describing its Application Services offerings to
Third Parties. Company may at any time make announcements which are
required by applicable law, regulatory bodies, or stock exchange or stock
association rules, so long as the party so required to make the
announcement, promptly upon learning of such requirement, notifies
Microsoft of such requirement and discusses with Microsoft in good faith
the exact wording of any such announcement.
The undersigned Company represents and warrants that it will be providing
Application Services as defined above and therefore qualifies as a Application
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.
Name of Company:
FutureLink Corporation MSLI, LLC
--------------------------------- ------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By:
------------------------------ ---------------------------------
(signature) (signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name:
---------------------------- -------------------------------
(printed) (printed)
Title: Vice President- Title:
Business Alliance ------------------------------
-------------------------- (printed)
(printed)
Date: 12/23/99 Date:
---------------------------- -------------------------------
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9
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This Agreement and attached documents MSLI, LLC Telephone Number (area code - phone number):
should be sent to the following address for ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (775) 823-5600
processing and approval: ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Facsimile Number (area code - phone number):
Attention: (▇▇▇) ▇▇▇-▇▇▇▇
Dept. 551, Volume Licensing
----------------------------------------------------------------------------------------------------------------------------
As provided in section 9.b., 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, each party will notify the other
party in writing on company letterhead:
COMPANY INFORMATION MICROSOFT INFORMATION
Application Service Provider Name
FutureLink MSLI, LLC
------------------------------------------------------------------------------------------------
Street address and/or post office box Street address and/or post office box
6 ▇▇▇▇▇▇, Ste. 100 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
------------------------------------------------------------------------------------------------
City and State/Province City and State/Province
Irvine, CA Reno, NV
------------------------------------------------------------------------------------------------
Country and Postal Code Postal Code
USA 92618 89511-1137
------------------------------------------------------------------------------------------------
Contact Name and Title Attention
▇▇▇▇▇ ▇▇▇▇▇▇▇ - Vice President/ Volume Licensing, Dept. 551
Business Alliance
------------------------------------------------------------------------------------------------
Phone Number Phone Number
▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------
Fax Number Fax Number
▇▇▇-▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------
E-Mail Address
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
------------------------------------------------------------------------------------------------
ALL NOTICES should have Copy To:
Microsoft Corporation
Law and Corporate Affairs
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Attention: Product Development & Marketing
-------------------------------------------------
And to:
-------------------------------------------------
Microsoft Account Manager Name
-------------------------------------------------
Office Location
-------------------------------------------------
E-mail Address (if applicable)
-------------------------------------------------
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ADDENDUM A -- SAMPLE ORDER FORM
-- S A M P L E --
HOSTED PRODUCTS LICENSE ORDER
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COMPANY NAME:
--------------------
AGREEMENT NUMBER:
--------------------
REPORT FOR THE MONTH ENDING:
--------------------
--------------------------------------------------------------------------------------------------------------------------------
THIRD PARTY
NAME/ADDRESS THIRD
(STREET, CITY, PARTY THIRD THIRD
STATE/PROVINCE, AGREEMENT PARTY PARTY
MICROSOFT PRODUCT USAGE UNIT EXTENDED POSTAL CODE, NUMBER AGREEMENT AGREEMENT
LINE PART NUMBER DESCRIPTION COUNTRY QUANTITY PRICE AMOUNT COUNTRY) W/CO. START DATE END DATE
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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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11
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12
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13
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The undersigned hereby certifies that to the best of his/her knowledge that
this Hosted Products License Order for the Application Services Agreement
between Microsoft and Company is true and accurate.
SIGNATURE THIS REPORT SHOULD BE SENT TO THE
------------------ FOLLOWING:
PRINTED NAME
------------------ E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
TITLE
------------------
DATE
------------------
TELEPHONE NUMBER
------------------
E-MAIL ADDRESS
------------------
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