Microsoft Certified Partner Number (Services Provider to complete) Agreement Number (Microsoft to complete)
Exhibit
10.5
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Microsoft Certified Partner Number
(Services Provider to complete)
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 |
Agreement Number
(Microsoft to complete)
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 |
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(waiver
attached)
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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 above.
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.
This
Agreement consists of this cover page, the contact information, 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").
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Company
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Contracting
Microsoft affiliate
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Name
of Entity
VitalStream,
Inc.
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Microsoft
Licensing, GP
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|
Signature
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Signature
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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|
Printed
Name
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Printed
Name
▇▇▇▇▇▇▇
▇▇▇▇▇▇
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|
Printed
Title
Vice
President, Operations
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Printed
Title
Contract
Admin.
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|
Signature
Date
1/9/04
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Signature
Date
(date
Microsoft affiliate countersigns) 1/20/04
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|
Effective
Date
(may
be different than our signature date) 2/1/04
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| Notices to Microsoft should be sent to: |
Copies
should be sent to:
|
|
Microsoft
Licensing, GP
▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dept.
551, Volume Licensing
|
Microsoft
Law
and Corporate Affairs
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ▇▇▇
Volume
Licensing Group
(▇▇▇)
▇▇▇-▇▇▇▇ fax
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Company
Contact Information
|
Company
|
||
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Name
of Entity
VitalStream,
Inc.
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Contact Name (This person handles access to online
information and
Receives notices, unless a different contact
is provided
below.)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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|
|
Street
Address (physical address only)
One
Jenner, #100
|
Contact Email Address (required for online
access)
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
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City
and ▇▇▇▇▇/Province
Irvine,
CA
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Phone
▇▇▇-▇▇▇-▇▇▇▇
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|
|
Country
and Postal Code
USA
92618
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Fax
▇▇▇-▇▇▇-▇▇▇▇
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|
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Microsoft
Account Manager Name
▇▇▇
▇▇▇▇▇
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Microsoft Account Manager Email Address
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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|
If
online access and notices should be provided to someone or some
place
other than above, complete this section:
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||
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Name
of Entity
|
Contact Name
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|
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Street
Address (physical address only)
|
Contact Email Address (required for online
access)
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|
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City
|
Phone
|
|
|
Country
|
Fax
|
|
|
Microsoft
Account Manager Name
|
Microsoft Account Manager Email Address
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|
|
Enter
the billing information that we should use to invoice
you.
|
||
|
Name
of Entity
VitalStream,
Inc.
|
Contact Name
/s/ ▇▇▇ ▇▇▇▇▇▇
|
|
|
Street
Address (physical address only)
One
Jenner, #100
|
Accounts Payable Contact Email Address
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
|
City
and ▇▇▇▇▇/Province
Irvine,
CA
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Accounts Payable Phone
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
Country
and Postal Code
USA
92618
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Accounts Payable Fax
▇▇▇-▇▇▇-▇▇▇▇
|
|
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Tax-Exempt Status (To be completed by U.S. company's
only)
o
Check
if tax
exempt and attach tax-exempt certificate or other documentation
to support your tax-exempt status. If we do not receive your
certificate or documentation, tax will be
applied.
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TERMS
AND CONDITIONS
1.
Scope of Agreement.
This
Agreement sets forth the terms upon which you may license Microsoft Software
Products on a nonperpetual 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.
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"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.
"MOET"
means
the Microsoft Order Entry Tool. MOET is 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.
"▇▇▇"
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 or hardware devices in 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 fix that Microsoft releases generally (such as
commercial product service paks) provided to you under this Agreement that
updates, fixes, patches or supplements the original Software
Products.
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"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,
subscription or services fee basis. Software Services excludes any services
that
involve installation of any Software Product directly on any Device such that
a
Customer could interact with the Software Product even if that Device were
not
connected to the Internet or a private network.
"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).
"User"
means
an individual who is authorized by you or your Reseller 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;
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| (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. 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 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. Microsoft will invoice you for all orders. Microsoft may request
additional information and verification from you before fulfilling
any
orders for Media and Related Printed Materials. Contact information
for
Microsoft will be provided at the time this Agreement is signed by
Microsoft and may be updated by Microsoft from time-to-time. Microsoft
may
change the process for ordering Media and Related Printed Materials
upon
thirty (30) days prior written
notice.
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| (d) |
Applicability
of License Terms Contained in End-User license
Agreement.
If you obtain Software Products from Microsoft, the terms of this
Agreement permanently and irrevocably supersede the terms of any
end user
license agreement (“▇▇▇▇”) 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 use terms (but not warranty terms) of any ▇▇▇▇ 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 (such as patches or fixes) is provided to you
with the
Software Products, and such additional software comes with a separate
▇▇▇▇, then such software is licensed to you under the terms of the
▇▇▇▇
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 pay for such use pursuant to Section 6; 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 except Outsourcing Companies and Affiliates.
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).
Microsoft will treat the names and addresses of your Resellers as
Confidential Information.
|
| (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.
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| (4) |
Reporting
Use.
You are responsible for consolidating all information regarding the
use of
the Software Products (in the form of Software Services) by your
Reseller's Customers and reporting such information to Microsoft
in your
Monthly Use Report.
|
| (5) |
Termination
of Right.
Any termination or expiration of this Agreement will automatically
terminate any rights granted under this Section
3(g).
|
| (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.
|
| (l) |
Data
Center Outsourcing.
Subject to the terms imposed in this Section 3(1), you may allow
installation of 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.
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| (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. Microsoft will treat the names
and
addresses of your Outsourcing Companies as Confidential
Information.
|
| (2) |
Scope
of Use.
You are responsible for all of your obligations under this Agreement
regardless of the physical location of the Servers containing the
Server
Software. The Outsourcing Company's access to and use of Server Software
is limited to performing data center administration, testing and/or
maintenance support services for you only. The Outsourcing Company
may not
access or use the Server Software for any other purpose. You will
be
legally 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 ten (10) 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
all 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 testing, maintenance and administration
of the Software Products. You do not need to report such use of the
Software Products in your Monthly Use
Report.
|
| (n) |
Use
of Trademarks and Logos.
Except as provided for in Section 3(f), 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 ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇).
You do not have permission to use any Microsoft logo without a license
from Microsoft. Microsoft logo license information can be obtained
from
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇
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.
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4.
Services Provider Use Rights.
| (a) |
Version
Specific.
Your use of any Software Product is subject to the applicable use
rights
contained in 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
rights
for new versions of Software Products, remove Software Products,
or make
non-material changes to the SPUR.
|
| (b) |
Publication.
The SPUR is published periodically on a Microsoft Designated Web
Site that
Microsoft will identify to you. Microsoft will publish revisions
to the
SPUR no later than the first day of the month one (1) calendar month
before the effective date of the revised
SPUR.
|
| (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 under 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 had previously licensed the removed Software Product
prior
to the time of its removal from the SPUR, and (2) Microsoft has not
notified you (in accordance with Section 16(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 a Monthly Use Report through MOET, or a Zero Use report
through ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
or
an alternative as specified by Microsoft. Microsoft will provide
you with
details concerning the use of MOET once this Agreement is approved
by
Microsoft (or at your request). You will provide all applicable
information requested in the Monthly Use Report, including but not
limited
to your Customers' name, address, zip/postal code, countries where
you
provide Software Services, and 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 bye-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) |
Report
Revisions.
All adjustments or revisions (e.g., ordering mistakes) to a Monthly
Use
Report that result in a reduction of license fees to Microsoft must
be
submitted within ninety (90) calendar days from the original invoice
date.
All revised Monthly Use Reports must be accompanied with a detailed
explanation of the adjustment or
revision.
|
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| (d) |
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.
|
| (e) |
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.
|
| (f) |
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.
|
| (g) |
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 ▇▇▇ 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) |
Price
Changes.
Microsoft may decrease prices in the Price List at any time. Microsoft
may
increase prices in the Price List only as
follows:
|
| (1) |
Once
each calendar year effective on January 1st. This price increase
will not
exceed, on a percentage basis, any price increase for the same Software
Product during the same calendar year under the "No Level" price
level of
Microsoft's Open licensing program;
and
|
| (2) |
At
any other time without limit (but in no event more often than in
other
licensing programs that Microsoft offers), for prices other than
in U.S.
Dollars, to offset exchange rate fluctuations. Microsoft will apply
in
that currency the same exchange rate that it applies in other licensing
programs.
|
Microsoft
will notify you of any price changes by publishing a revised Price list on
a
Microsoft Designated Web Site no later than thirty (30) days before they become
effective. For purposes of your reporting obligations under Section 5 and your
payment obligations under Section 6(d) the applicable Price list will be the
Price List in effect during the usage month for which you are reporting. For
example, if price changes become effective July 1st, you will report and make
payment for June usage pursuant to the Price List that was in effect through
June 30th.
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| (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):
|
(All
locations in the Americas except Canada):
|
(Use only if you are located in Canada): |
| MICROSOFT LICENSING, GP | MICROSOFT LICENSING, GP |
| Region Collections | Collections |
| ▇▇ ▇▇▇ ▇▇▇▇▇▇ | ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇, Plaza Branch |
| Account # 375 ▇▇▇▇▇▇▇ | Account #▇▇▇-▇▇▇-▇ |
| ABA#: ▇▇▇▇▇▇▇▇▇ | Bank/Branch Transit # ▇▇▇/▇▇▇▇ |
| ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇. | ▇▇▇▇▇▇▇, ▇▇ |
| ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ | ▇▇▇▇▇▇ |
| ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇ | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
|
Remittance detail for wire transfers must
also be sent either by fax or e-mail:
|
Remittance detail for wire transfers must
also be sent either by fax or e-mail:
|
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Special Agreements Payments | Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Special Agreements Payments |
| E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ | E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ |
| (e) |
Rebates.
You may earn a semi-annual rebate from Microsoft of up to three percent
(3%) of the total amount stated in all of your monthly invoices issued
during the Applicable Rebate Period (the "Rebate Amount"). You may
earn:
(1) up to fifty percent (50%) of the Rebate Amount for the timely,
accurate and complete submission of your Monthly Use Report; and
(2) up to
fifty percent (50%) of the Rebate Amount for payment of all of your
monthly invoices within thirty (30) days after the date of Microsoft's
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.
|
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| (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
taxes),
duties, fees, tariffs, or other governmental charges or expenses
(individually and collectively
"Taxes").
|
| (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 your 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.
|
| (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.
|
| (5) |
Tax
Treatment.
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.
|
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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: (1) terms that are at least as protective of
Microsoft's intellectual property rights as the terms contained in
Section
3(b)(3) and 3(b)(4) above; (2) terms that disclaim, to the extent
permitted by applicable law, all warranties by Microsoft and any
liability
by Microsoft for any damages, whether direct, indirect, or consequential,
arising from the use of the Software Services; and (3) terms stating
that
product support for the Software Services are provided by you or
a third
party on your behalf 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 Down 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 use 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.
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| (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 and 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
thirty
(30) days prior notice, during normal business hours and in 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, which is at least as protective of your Confidential
Information as set forth herein. 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 are in compliance with the terms of this Agreement.
By
invoking the rights and procedures described above, Microsoft does
not
waive its right to enforce this Agreement or to protect its intellectual
property by any other means permitted by
law.
|
| (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 ▇▇▇ and/or PL that
you are
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 or self-audit 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
|
14
of
22
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 any 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 not create any
right
or obligation to continue such relationship on the same terms as those contained
in this Agreement after the Term extension ends. Notwithstanding extension
of
the Term, this Agreement is, and will always be interpreted as, a fixed term
agreement and not an indefinite term agreement.
| (c) |
Termination
of the Agreement.
|
| (1) |
Termination
Without Cause.
You may terminate this Agreement without cause, so long as you
provide
sixty (60) days advance notice to Microsoft in accordance with
Section
16(d).
|
| (2) |
Termination
for Breach.
A
party may terminate this Agreement due to breach by the other party
(including, without limitation, any breach of the use rights contained
in
the SPUR). A notice of breach describing the nature of the breach
must
first be sent to the breaching party in accordance with Section
16(d).
This Agreement will not be terminated if the breaching party cures
the
breach within thirty (30) days after receipt of
notice.
|
| (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, and provided you have
not
entered into a subsequent 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 Microsoft 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 ("▇▇▇▇"), any Microsoft software
products legally obtained and licensed under other Microsoft license
agreements or through other authorized channels of
distribution.
|
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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 one (1)
year 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 ninety (90)
days, whichever period is longer.
This
limited warranty does not apply to Redistribution Software, which you are
permitted to redistribute under the SPUR. This limited warranty is void if
failure of the Software Products is the result of accident, abuse,
misapplication or unauthorized modification.
This
limited warranty does not apply to any Software Products obtained by you
from an
OEM. The warranty provided by the OEM, if any, will apply in lieu of the
limited
warranty stated in this Section 11(a).
You
do
not have the right to make on behalf of Microsoft any other warranties or
promises to any Customer concerning any Software Product that are not contained
in this Section 11(a).
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,
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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 and Misappropriation Claims.
| (a) |
Duty
to Defend.
Microsoft will defend you against and, subject to Section 13(a)
will pay
the amount of any resulting 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 or trademark
enforceable in any jurisdiction; or (2) a Software Product infringes
any
patent issued and enforceable in the United States, Australia,
the
European Union, or Japan on or before the date this Agreement expires
or
is terminated, or (3) misappropriates any trade secret protected
under the
laws of the United States (as the terms "misappropriate" and "trade
secret
are defined in the Uniform Trade Secrets Act). Microsoft's obligation
under this Section 12(a) is subject to your notifying Microsoft
promptly
in writing of the claim and giving Microsoft sole control over
its defense
or settlement. You will provide Microsoft with reasonable assistance
in
defending the claim, and Microsoft will reimburse you for any reasonable
out-of pocket expenses incurred in providing such
assistance.
|
| (b) |
Exceptions
to Duty.
Microsoft's obligations under Section 12(a) will not apply to any
infringement claim that is based on
your:
|
| (1) |
Use
of the Software Product after Microsoft notifies you to discontinue
use
because of an infringement claim,
or
|
| (2) |
Combining
the Software Product with a non-Microsoft product, data or business
process if such claim would not have arisen but for such combination,
or
|
| (3) |
Altering
the Software Product if such claim would not have arisen but for
such
alteration
|
| (4) |
Your
use of our trademark(s) without express written consent to do so;
or
|
| (5) |
For
any trade secret claim, your acquiring a trade secret (a) through
improper
means; (b) under circumstances giving rise to a duty to maintain
its
secrecy or limit its use; or (c) from a person (other than Microsoft
or
its affiliates) who owed to the party asserting the claim a duty
to
maintain the secrecy or limit the use of the trade
secret.
|
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
Products 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, at its option, 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,
and
in the event that Microsoft is unable to provide any of the above
through
commercially reasonable efforts, Microsoft will refund the amount
paid,
and terminate the license, for the infringing Software
Product.
|
| (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.
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| (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 or trade secret misappropriation 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. The limitations contained in this paragraph will not
apply with
respect to the following in connection with the performance of
this
Agreement: (1) Microsoft's liability for damages for gross negligence
or
willful misconduct, to the extent caused by us or our agent and
awarded by
a court of final adjudication; and (2) our obligations under Section
15
(Confidentiality).
|
| (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 its confidentiality obligation
or
of the other party's intellectual property
rights.
|
| (c) |
Application.
Except as specified expressly in this Section 13, the limitations
on and
exclusions of liability for damages in this Agreement apply regardless
of
whether the liability is based on breach of contract, tort (including
negligence), strict or product liability, breach of warranty, or
any other
legal theory, and even if any remedy fails of its essential
purpose.
|
14.
Compliance with Export Laws.
|
The
Software Products licensed under this Agreement are of U.S. origin
for
purposes of U.S. export control laws. You will comply with all
applicable
international and national laws that apply to the Software Products,
including the U.S. Export Administration Regulations, as well as
end-user,
end-use and destination restrictions issued by U.S. and other governments.
For additional information, see ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/.
|
15.
Confidentiality.
| (a) |
Use
of Confidential information.
For a period of five (5) years after initial 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 as expressly permitted by this section 15) 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
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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, but in no event less than a reasonable
degree of care. A party may disclose the other party's Confidential
Information to its employees, agents or consultants, provided that
such
disclosures are only on a need-to-know basis and are subject to
the
confidentiality obligations imposed here. When Confidential Information
is
no longer necessary to perform or enforce any obligation under
this
Agreement, each party will return it to the other party or destroy
it at
the other's request.
|
| (b) |
Cooperation
in the Event of Disclosure.
A
party will immediately notify the other upon discovery of any unauthorized
use or disclosure of Confidential Information and will cooperate
in any
reasonable way to help the other party regain possession of the
Confidential Information and prevent further unauthorized
use.
|
16.
Miscellaneous.
| (a) |
Assignment.
You may not assign your rights or obligations under this Agreement,
whether by contract, merger, operation of law, or otherwise, without
the
prior written consent of Microsoft. Microsoft will not unreasonably
withhold or delay its consent to a request for assignment. Microsoft
may
assign this Agreement or any portion thereof to any Affiliate without
your
consent. Microsoft will notify you of any such assignment in writing.
Any
attempted assignment in violation of this Section is null and
void.
|
| (b) |
Order
of Precedence.
If there is any direct inconsistency between these Terms and Conditions
and any terms contained in the SPUR, then these Terms and Conditions
will
control. However, for the avoidance of doubt, in the event that
a subject
is addressed in the SPUR and not in these Terms and Conditions,
then the
terms in the SPUR will control. The terms of this Agreement will
control
over any purchase order you may send to
Microsoft.
|
| (c) |
Amendments.
This Agreement, except for the SPUR and the Price List, may be
changed
only by a written amendment that is signed by an authorized representative
of each party. Microsoft may amend the SPUR in accordance with
Section
4(a), and Microsoft may amend the Price List in accordance with
Sections
6(b) and 6(c).
|
| (d) |
Notices.
Except as provided in Sections 4(b), 5(c), 6(b) and 6(c), all notices
under this Agreement must be addressed to a party (as specified
on the
first page of this Agreement) and sent by one of the following
methods:
(1) postage prepaid, certified or registered mail, return receipt
requested; (2) overnight courier (e.g., DHL, Federal Express, Airborne),
charges prepaid, confirmation requested; or (3) facsimile, with
confirmation of delivery. Notices will be deemed delivered on the
date
shown on the postal return receipt or on the overnight courier
or
facsimile confirmation of delivery.
|
| (e) |
Applicable
Law.
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. 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.
You
will bring any action to enforce this Agreement in the State of
Washington, ▇.▇▇ This choice of jurisdiction and venue does
not
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|
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 2, 6, 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.
|
| (l) |
Non-exclusivity.
Your agreement is non-exclusive. Nothing contained in it requires
you to
license, use or promote Microsoft software products or services
exclusively. You may, if you choose, enter into agreements with
other
parties to license, use or promote non-Microsoft software products
or
services.
|
| (m) |
English
Language.
It is the express will of the Parties that this Agreement and all
related
documents have been drawn up in English. C’est la volonté expresse des
parties que la présente convention ainsi que les documents qui s'y
rattachent soient rédigés en
anglais.
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EXHIBIT
A: AFFILIATE AGREEMENT FORM
Prior
to
exercising any rights (including but not limited to any use of Software
Products) under your Services Provider License Agreement (the "Agreement"),
each
Affiliate must execute an Affiliate Agreement in the form specified below.
Both
you and the Affiliate must keep the executed Affiliate Agreement on file
and
must deliver it to Microsoft upon request.
|
[To
be printed on Affiliate's company letterhead]
AFFILIATE
AGREEMENT
For
good and valuable consideration, [insert
name of affiliate].
a corporation organized under the laws of [insert
name of jurisdiction]
("Affiliate") hereby covenants and agrees with [insert
name of contracting Microsoft Affiliate]
("Microsoft"), that Affiliate will comply with all obligations
of
[insert
name of company that has entered into the Agreement with
Microsoft],
a
corporation organized under the laws of [insert
name of jurisdiction]
("Company") under the Microsoft Services Provider License Agreement
between Microsoft and Company effective as of [insert
Effective Date]
(the "Agreement").
Affiliate
acknowledges and agrees that its agreement herein is a condition
for
Affiliate to exercise any of the rights granted by Company to Affiliate
under the terms of the Agreement. Affiliate acknowledges and agrees
that
it will be bound by the Terms and Conditions of the Agreement applicable
to Company and that it and Company will be jointly and severally
liable to
Microsoft for all obligations related to Affiliate's exercise of
any
license rights under the Agreement, including but not limited to,
the
payment of monthly fees under the Agreement. Notwithstanding the
foregoing, Affiliate acknowledges that all Monthly Use Reports
and
payments to be provided by each Affiliate to Microsoft under the
Agreement
will be consolidated and provided to Microsoft each month by Company
on
behalf of Affiliate.
Affiliate
acknowledges and agrees that, in the event Affiliate ceases to
be an
Affiliate of Company (as such term "Affiliate" is defined in the
Agreement), then the rights granted hereunder will automatically
terminate
on the date that Affiliate ceases to be an Affiliate of
Company.
Any
terms used herein that are defined in the Agreement will have the
same
meaning as in the Agreement.
IN
WITNESS WHEREOF, a duly authorized representative of Affiliate
has
executed this document as of the date set forth below. All signed
copies
of this document will be deemed originals.
____________________________________
(Name
of Affiliate)
____________________________________
(Signature)
____________________________________
(Print
Name and Title)
____________________________________
(Date)
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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
PRODUCTS"). [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. |
such Client
Software and/or Redistribution Software upon termination
or
|
||
|
"Client
Software"
means software that allows a Device to access or utilize the
services or
functionality provided by the Server Software.
|
cancellation
of your agreement with [COMPANY],
upon notice from [COMPANY]
or
upon transfer of your Device to another person or entity, whichever
first
occurs.
|
|||
|
"Device"
means each of a computer, workstation, terminal, handheld PC,
pager,
telephone, personal digital assistant, "smart phone,' or other
electronic
device.
|
You
may not copy any printed materials accompanying the SOFTWARE
PRODUCTS.
|
|||
|
"Server
Software"
means software that provides services or functionality on a
computer
acting as a server.
|
6.
|
LIMITATIONS
ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY.
You may not reverse
engineer, decompile, or disassemble the
|
||
|
"Redistribution
Software"
means the software described in Paragraph 4 ("Use of Redistribution
Software") below.
|
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
|
||
| 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
|
transfer
or distribute the SOFTWARE PRODUCTS to any third party, and
you may not
permit any third party to have access to and/or use the functionality
of
the SOFTWARE PRODUCTS.
|
||
|
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. |
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. |
||
|
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].
The terms of this document permanently and irrevocably supersede
the terms
of any Microsoft End User License Agreement which may be presented
in
electronic form during your use of the Client Software.
|
9. |
NO
WARRANllES, 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
|
|||
| 4. |
USE
OF REDISTRIBUTION SOFTWARE.
In connection with the services provided to you by [COMPANY],
you may have access to certain "sample,"
|
provided
to you by [COMPANY]
and is not provided by Microsoft or its affiliates or
subsidiaries.
|
||
|
"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
|
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.
|
||
|
Redistribution
Software unless you expressly agree to and comply with such
additional
terms, as provided to you by [COMPANY].
|
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
|
||
| 5. |
COPIES.
You may not make any copies of the SOFTWARE PRODUCTS; provided,
however,
that you may (a) make one (1) copy of Client Software on your
Device as
expressly authorized by [COMPANY];
and (b) you may make copies of certain Redistribution Software
in
accordance with Paragraph 4 (Use of Redistribution Software).
You must
erase or destroy all
|
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
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇/.
|
||
| 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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