MICROSOFT(R) CERTIFIED SOLUTION PROVIDER AGREEMENT
THIS MICROSOFT CERTIFIED SOLUTION PROVIDER AGREEMENT IS BETWEEN THE
MICROSOFT CORPORATION OR SUCH OTHER MICROSOFT SUBSIDIARY, AFFILIATE OR RELATED
COMPANY ("MICROSOFT") AS IS SPECIFICALLY IDENTIFIED IN THE COUNTRY ANNEX, AS
THOSE TERMS ARE DEFINED BELOW, AND THE MICROSOFT CERTIFIED SOLUTION PROVIDER
(THE "MCSP") IDENTIFIED IN THE COUNTRY ANNEX AND IN THE FINAL INVOICE (MCSP), AS
THOSE TERMS ARE DEFINED BELOW. THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL
APPLY TO ALL BUSINESS ENTITIES AUTHORIZED AS MICROSOFT CERTIFIED SOLUTION
PROVIDERS (MEMBER LEVEL, PARTNER LEVEL) AND AS MICROSOFT CERTIFIED TECHNICAL
EDUCATION CENTERS (MICROSOFT CTEC, MICROSOFT CTEC PARTNER LEVEL).
1. DEFINITIONS:
The following definitions shall apply to this Agreement, the Country
Annex, the Site Annex, the MCSP Program Guide, the Final Invoice (MCSP) and to
any and all additional annexes and addenda which currently comprise the
Agreement (as defined below) or which may at a later date comprise the
Agreement:
A. "PRODUCTS" shall mean such Microsoft software products which the
MCSP is licensed to use herein, as well as other software products which
Microsoft Corporation or an authorized Microsoft subsidiary may, from time to
time, license the MCSP to use, but excluding any Beta Software (defined below).
B. "MICROSOFT CERTIFIED SOLUTION PROVIDER" shall mean the business
entity which has met certain MICROSOFT established requirements and which
provide the Services (defined below).
C. "SERVICES" shall mean the services as specified in the MCSP
Program Guide.
D. "SITES" shall mean (1) separate legal entities controlled by the
MCSP or together with the MCSP are under the common control of a third party, or
(2) the additional divisions or offices of the MCSP which are not located at the
MCSP's principal place of business. Unless otherwise provided, the term `MCSP'
in this Agreement shall be deemed to include any Sites.
E. "MICROSOFT CTEC" shall mean a Microsoft Certified Solution
Provider which MICROSOFT has approved as a Microsoft Certified Technical
Education Center and which shall provide the training services as more fully
defined and described in the Microsoft Certified Technical Education Center
Addendum and Microsoft CTEC Program Guide.
F. "MICROSOFT CTEC PARTNER LEVEL" shall mean a Microsoft Certified
Solution Provider which MICROSOFT has approved to be upgraded to the Microsoft
CTEC Partner Level and which must fulfill the additional requirements set forth
in the Microsoft CTEC Partner Level Program Guide.
G. "MCSP PARTNER LEVEL" shall mean the Microsoft Certified Solution
Provider which MICROSOFT has approved to be upgraded to the MCSP Partner Level
and which must fulfill the additional requirements set forth in the MCSP Program
Guide.
H. "EFFECTIVE DATE" shall mean the date of MICROSOFT's electronic
mail notification of acceptance which shall be confirmed by a written letter
delivered within a Welcome Kit to a new MCSP or renewing MCSP.
I. "MCSP PROGRAM GUIDE" shall mean the program guide which contains
the specific MCSP Member or Partner Level requirements and benefits. The MCSP
Program Guide may, from time to time, be subject to change at MICROSOFT's sole
discretion.
J. "MICROSOFT CTEC PROGRAM GUIDE," "MCSP PROGRAM GUIDE" AND
"MICROSOFT CTEC PARTNER LEVEL WELCOME GUIDE" shall all have the meanings defined
in the applicable addenda or documents. The Microsoft CTEC Program Guide, MCSP
Program Guide applicable to member and partner level requirements and benefits,
and Microsoft CTEC Partner Level Welcome Guide may, from time to time, be
subject to change at MICROSOFT's sole discretion.
K. "IDENTITY KIT" shall mean the guidelines governing the use and
placement of any and all MCSP and/or Microsoft CTEC program logos. The Identity
Kit shall be provided to an approved MCSP/Microsoft CTEC with the applicable
Welcome Kit.
L. "AGREEMENT" shall mean this agreement between MICROSOFT and the
MCSP with respect to all terms, conditions, requirements, and benefits appearing
herein, including but not limited to, the Site Annex (if applicable), the
Country Annex, the MCSP Program Guide, the Microsoft CTEC Program Guide, the
Final Invoice (MCSP), and any other applicable annexes and addenda (E.G., the
Mircrosoft Certified Technical Education Center Addendum). The Site Annex, the
Country Annex, the MCSP Program Guide and the Final Invoice (MCSP) are attached
hereto and incorporated herein by reference.
M. "TERM" shall mean the period from the Effective Date to and
through December 31, 1999, and any subsequent one-year renewal terms as
described in Section 3 below.
N. "TERRITORY" shall mean the territory specifically set forth in
the Country Annex.
O. "MICROSOFT CERTIFIED PROFESSIONAL" shall mean the individuals who
have been certified by MICROSOFT, or a third party authorized by MICROSOFT, as a
Microsoft Certified Product Specialist, Microsoft Certified Systems Engineer,
Microsoft Certified Solution Developer, Microsoft Certified Trainer, or such
other certified professional designations as may be established.
P. "ELECTRONIC ACCEPTANCE" shall mean the electronic expression of
agreement with and acceptance of any amendments to the Agreement which may occur
with each renewal term. Such electronic acceptance shall be signified by
clicking on the appropriate "AGREE' button (or such other similarly designated
button during the electronic agreement process).
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Q. "FINAL INVOICE (MCSP)" AND "FINAL INVOICE (MICROSOFT CTEC)" shall
mean, respectively, the invoice provided to the MCSP or Microsoft CTEC which
indicates the proper Microsoft Certified Solution Provider or Microsoft CTEC fee
for the Territory and which requires newly enrolling MCSPs or Microsoft CTECs,
and under certain circumstances selected renewing MCSPs and Microsoft CTECs, to
indicate its acceptance of the terms of this Agreement by signing and returning
the invoice to MICROSOFT. All renewing and newly enrolling MCSPs and Microsoft
CTECs must return the appropriate invoice in the manner identified in Section
17.J. Unless prohibited by the law of the Territory, any renewing MCSP or
Microsoft CTEC shall indicate its acceptance of any amendments to the Agreement
by Electronic Acceptance.
R. "BETA SOFTWARE" shall mean the pre-release Territory specific
version of certain Microsoft software products together with written
documentation and related information.
S. "BETA CD" shall mean a compact disk which MICROSOFT may, from
time to time, deliver to the MCSP which shall contain the Beta Software.
T. "BETA ONLINE DISTRIBUTION PROCESS" shall mean the process which
MICROSOFT shall implement which will enable the MCSP to obtain certain Beta
Software through an online distribution process.
U. "BETA PROGRAM" shall mean the MICROSOFT Beta Evaluation Program
through which the MCSP may receive Beta Software through the Beta Online
Distribution Process and/or on Beta CDs.
V. "MCSP WELCOME KIT"; shall mean the kit provided upon acceptance
into the MCSP program that includes the first set of products and other program
specific materials.
W. "MICROSOFT CTEC WELCOME KIT" shall mean the kit provided upon
acceptance into the Microsoft CTEC program that contains materials that will get
the new Microsoft CTEC underway.
X. "MICROSOFT CTEC PARTNER LEVEL WELCOME KIT" shall mean the kit
provided upon acceptance into the Microsoft CTEC Partner Level program that
contains materials that will get the new Microsoft CTEC Partner Level entity
underway.
Y. "PARTNER LEVEL WELCOME KIT" shall mean the kit provided upon
acceptance into the MCSP Partner Level program.
Z. "WELCOME KIT" shall collectively mean the MCSP Welcome Kit, the
Microsoft CTEC Welcome Kit, the Microsoft CTEC Partner Level Welcome Kit and the
Partner Level Welcome Kit.
2. APPOINTMENT
MICROSOFT hereby appoints the MCSP as a non-exclusive Microsoft Certified
Solution Provider at the Member Level in the Territory, and the MCSP accepts
such appointment.
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Notwithstanding the foregoing, this appointment and this Agreement are
conditioned on MICROSOFT's final approval of any new applicant or renewing MCSP,
such approval shall be indicated by delivery of MICROSOFT's electronic mail
notification of acceptance which shall be confirmed by a written letter
delivered with the MCSP Welcome Kit. MICROSOFT's final approval shall be based
on MCSP's compliance with the objective obligations and requirements of the
Microsoft Certified Solution Provider program. The MCSP understands and agrees
that MICROSOFT has the right but not the obligation, an a non-exclusive basis,
to upgrade the MCSP to the MCSP Partner Level and/or approve the MCSP as a
Microsoft CTEC or Microsoft CTEC Partner Level. If the MCSP is upgraded to the
MCSP Partner Level and/or is approved to be a Microsoft CTEC or Microsoft CTEC
Partner Level, then the MCSP shall be required to meet certain additional
requirements and obligations and shall receive the additional benefits related
to such appointments or upgrades.
3. TERM AND TERMINATION
A. TERM: This Agreement shall take effect on the Effective Date and,
unless earlier terminated as, provided herein, shall continue until December 31,
1999. This Agreement shall renew for additional terms of one year each, provided
that i) the MCSP continues to meet any and all MCSP obligations and
requirements, including but not limited to, timely payment of any applicable
program fees hereto, and ii) the MCSP accepts and agrees to any and all changes,
if any, in the terms and conditions of this Agreement in the manner identified
in Section 17.J below. Any renewal term is conditioned on MICROSOFT's final
approval, such approval shall be indicated by delivery of MICROSOFT's electronic
mail notification of acceptance which will be confirmed by a written letter
delivered within the MCSP Welcome Kit. If renewing MCSP does not receive
MICROSOFT's final approval, this Agreement shall expire. Upon expiration or
earlier termination of this Agreement, all rights and benefits granted by this
Agreement shall revert to MICROSOFT and the MCSP shall immediately cease use of
and destroy (i) any Products and Beta Software (ii) all internal use and
training licenses, (iii) MSDN and TechNet licenses, (iv) if applicable, any
licenses granted under the Microsoft Internal Use Product Program, (v) Beta
Software licenses and (vi) the Microsoft Certified Solution Provider logo and
any other MS logos, and shall cease to represent itself as a Microsoft Certified
Solution Provider. Additionally, the MCSP shall immediately destroy any and all
Beta CDs in the MCSP's possession or control. Termination and/or expiration of
this Agreement shall immediately terminate the Microsoft CTEC Addendum and any
other applicable addenda and terminate MCSP's appointment as an MCSP (Partner
Level), Microsoft CTEC and Microsoft CTEC Partner Level.
B. TERMINATION WITHOUT CAUSE: Either party shall have the right to
terminate this Agreement at any time, without cause and without the intervention
of the courts, on the delivery of thirty (30) calendar days' (Japan only: sixty
(60) calendar days') prior written notice. Neither party shall be responsible to
the other for any costs or damages resulting from the termination of this
Agreement.
C. IMMEDIATE TERMINATION WITH CAUSE: Unless otherwise prohibited by
law and without prejudice to MICROSOFT's other rights or remedies, MICROSOFT
shall have the right to immediately terminate this Agreement, without prior
written notice to MCSP, in the event that any of the following occurs:
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1. If MCSP is in breach of 6A;
2. If MCSP is discovered to be pirating any MICROSOFT products
or otherwise engaged in any activities which the laws of the
Territory prohibit; or
3. If MCSP sells, transfers or assigns a significant portion of
stock to a third party or enters into any transaction which
results in MCSP's loss of management control over MCSP's
organization.
D. TERMINATION WITH CAUSE: Without prejudice to MICROSOFT's other
rights or remedies, MICROSOFT shall have the right to terminate this Agreement
immediately in the event that one or more of the following occurrences remains
not cured for a period of thirty (30) calendar days (Japan only: sixty (60)
calendar days) after MCSP has received notice from MICROSOFT that such
occurrence constitutes a breach of the Agreement;
1. If the MCSP makes any assignment for the benefit of
creditors, files a petition in bankruptcy, or is adjudged
bankrupt or becomes insolvent, or is placed in the hands of
a receiver. The equivalent of any of these proceedings or
acts, though known and/or designated by some other name or
term in the Territory, shall likewise constitute grounds for
termination of this Agreement; or
2. If the MCSP breaches any other terms or conditions of this
Agreement.
E. TERMINATION OF SITES: Upon the expiration or earlier termination
of this Agreement, all Sites authorized herein shall also be terminated. Within
thirty (30) calendar days (Japan only: sixty (60) calendar days) from the
effective date of any termination or expiration of the Agreement, such Sites may
apply independently for authorization to become a Microsoft Certified Solution
Provider.
4. MCSP SITES
Upon MCSP's request, MICROSOFT may approve the Sites indicated on the Site
Annex as additional Microsoft Certified Solution Providers, provided that such
Sites are also located in the Territory and each individually meets the MCSP
Member Level requirements, and provided that the MCSP shall be responsible for
paying the additional fees arising from the addition of each Site. If the Site
is a separate legal entity, MCSP herein unconditionally and irrevocably
guarantees the payment and performance of that Site under the terms and
conditions of this Agreement.
5. PAYMENT
During the initial Term and any renewal Terms, the fee for the appointment
as a Microsoft Certified Solution Provider under this Agreement shall consist of
per annum payments as follows:
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A. The Microsoft Certified Solution Provider fee which is the amount
determined by the fee schedule set forth in Table 1 of the Final Invoice (MCSP);
and
B. The Site fee, which will vary depending on the number of sites,
is the amount determined by the fee schedule set forth in Table 1 of the Final
Invoice (MCSP).
With respect to any renewing Microsoft Certified Solution Provider, all
fees due under this Agreement shall be received by MICROSOFT by the date
indicated in the MCSP Program Guide for the applicable renewal Term. The MCSP
understands and agrees that if it is appointed as an Microsoft CTEC, it shall be
required to pay the Microsoft CTEC fee in a timely manner. Any fee payments
shall be submitted without any deduction whether by set-off, counterclaim or
otherwise.
6. MCSP RESPONSIBILITIES AND OBLIGATIONS
A. TRADEMARKS/LOGOS/REGISTERED MARKS: Nothing in this Agreement
shall be construed as granting the MCSP with a license to use MICROSOFT's
trademarks, trade names, or logos other than in the following manner: the MCSP
is a "Microsoft Certified Solution Provider" or as is otherwise indicated in the
Microsoft Certified Education Center Addendum. The specific guidelines
concerning the size, placement and use of the Microsoft Certified Solution
Provider name and logo are set forth in the Identity Kit. The MCSP shall use the
appropriate trademark symbol (either "TM" [Standard trademark] or "(R)"
[Registered trademark] in a superscript following the Product name) whenever a
Product name is mentioned in any advertisement, brochure, or material circulated
or published in any form whatsoever by the MCSP. The appropriate trademark
symbol must be used in conjunction with references to each Product in all the
MCSP's circulations or publications. MICROSOFT reserves the right to (1) review
and approve all such trademark service names, trade names and logos MCSP uses,
and (2) to amend any Microsoft trademarks, trade names, service marks or logos
and agrees to notify the MCSP of any such amendments that are relevant to the
MCSP's business. MCSP shall not, at any time, use or register any name,
trademark, service xxxx, logo or symbol which may be confusingly similar to any
Microsoft or Microsoft Corporation trademark, trade name, logo, symbol or
product name.
B. REPORTING: Upon MICROSOFT's request, the MCSP shall provide sales
and service reports, using such forms as MICROSOFT shall from time to time
provide, and deliver such reports to MICROSOFT at the address indicated on the
reporting form. The MCSP warrants that such reports shall be true and correct to
the best of its knowledge and belief.
C. MEMBERSHIP APPLICATION AND PROFILE: MCSP represents and warrants
that all the information provided on any registration or application form
including, without limitation, its Member Application and/or Profile is, in all
material respects, true and correct to the best of its knowledge and belief, and
warrants that the information will continue to be so during the term of this
Agreement unless otherwise notified in writing by MCSP to MICROSOFT. Should
there be any changes in such information during the course of this Agreement,
MCSP agrees to promptly inform MICROSOFT in writing giving details of such
changes.
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D. MICROSOFT CERTIFIED PROFESSIONALS: The MCSP understands and
agrees that it, at all times, shall employ the number and kind of MCPs as set
forth in the MCSP Program Guide and, if applicable, the Microsoft CTEC Program
Guide.
E. SERVICE ESTIMATE: The MCSP shall use its best efforts to realize
certain percentage of its gross revenue from the provision of the MCSP Services.
Gross revenues shall be computed from revenues derived from services provided to
third parties. The specific percentage referred to above shall be set forth in
the MCSP Program Guide. The estimate shall not include those services, support,
training or product distribution provided to any of the MCSP's Sites.
F. PIRACY: MCSP shall use its best efforts to prevent the
unauthorized duplication or pirating of the Product and shall take all available
steps to protect against piracy and to protect MICROSOFT's right, title and
interest in and to the Product. MCSP shall promptly notify MICROSOFT of any
infringement in the Territory of any copyright or of any trademark of MICROSOFT.
7. MICROSOFT RESPONSIBILITIES AND OBLIGATIONS
A. MICROSOFT LICENSE GRANTS FOR INTERNAL AND MARKETING USE:
For internal and marketing uses only, MICROSOFT hereby grants to the MCSP,
including each Site, a non-exclusive, non-transferable, royalty-free, terminable
license to make and use the following:
1. The number of authorized copies of the Products are set
forth in the MCSP Program Guide. In all cases, use of the
authorized copies of the Product are subject to the
additional terms and conditions of the End User License
Agreement, including but not limited to, any limitation and
warranties, for the corresponding Product, except that the
authorized copies shall not be resold, transferred or
assigned to any third party. MICROSOFT reserves the right to
change the Products (and number of authorized copies)
licensed above and as may be provided through the Microsoft
Internal Use Product Program, from time to time and in its
sole discretion; and
2. This grant of authorization for copies of the Products
amends the End User License Agreements; however, the
provisions of such End User License Agreements where
unamended remain in full force and effect.
B. TRAINING USE LICENSES: The MCSP, at its sole cost and expense,
may offer training to customers on the Product. MICROSOFT hereby grants the MCSP
permission to make the number of authorized copies set forth in the MCSP Program
Guide for the sole purpose of providing training on the Microsoft Desktop
Product. Training use of the Product is subject to the following conditions: (i)
the MCSP shall destroy all authorized copies used outside of the MCSP location
upon completion of on-site training; (ii) the MCSP may only reproduce the
Product for which the MCSP conducts training classes; (iii) the MCSP agrees to
be bound by the
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terms of the Microsoft End User License Agreement for each copy, except that
such Product shall not be resold, transferred, or assigned to a third party,
(iv) the MCSP shall strictly control use of any authorized copies in accordance
with the End User License Agreement; and (v) all authorized copies of the
Product shall be true and complete authorized copies, including all copyright
and trademark notices.
C. PRODUCT SUPPORT: The MCSP may receive the product support
benefits set forth in the MCSP Member Program Guide and, if applicable, the
Microsoft CTEC Program Guide. The specific terms and conditions relating to use
of product support shall be as specified under the terms of a separate product
support agreement between the MCSP and MICROSOFT.
D. ADVERTISING AND PROMOTIONAL MATERIALS: MICROSOFT may, in its sole
discretion, reference the MCSP in advertising and promotional materials in
connection with the sale and promotion of the Products. Uses of the MCSP's name
include, but are not limited to: lists of the MCSP's for customer information,
advertising of the Microsoft Certified Solution Provider program containing the
MCSP's name. When a specific advertisement or promotion containing only the
MCSP's name is planned, MICROSOFT will obtain the MCSP's written permission
before such use. MICROSOFT shall also obtain the MCSP's written permission
before use of any logo of the MCSP.
E. CHANGES IN THE MCSP AGREEMENT FEATURES: The MCSP understands that
MICROSOFT may expand, change the scope or contents of, and/or delete, any
benefits offered under the Microsoft Certified Solution Provider program,
including but not limited to expanding, changing the scope or contents of and/or
deleting the MCSP Program Guide and, if applicable, the Microsoft CTEC Program
Guide, and Microsoft CTEC Partner Level Program Guide. In the event that
MICROSOFT adversely changes any program features, and should the MCSP be
dissatisfied with those changes, the MCSP may terminate this Agreement in
accordance with Section 3.B and will have no other recourse against MICROSOFT.
8. BETA EVALUATION PROGRAM
MICROSOFT, at its sole discretion, may periodically provide a Beta
Software to the MCSP at no additional charge. The MCSP understands and agrees
that the Beta Software may be used only by the MCSP and its employees and that
it is not entitled to receive any particular Beta Software or any commercial
release version of a MICROSOFT Software appearing on any Beta CD or obtained
through the Beta Online Distribution Process. The Beta Software provided herein
may not contain all features ultimately included in the commercial release
version of the software product and may contain features that will disable it at
the end of the license period. MICROSOFT will not provide any product support
for the Beta Software. Additionally, the following shall apply:
A. END USER LICENSE AGREEMENT COVERAGE:
1. With respect to any Beta Software provided on any Beta CDs,
an End User License Agreement in printed and/or electronic
form covering each Beta Software product will accompany each
Beta CD. The MCSP will be entitled to install the number of
authorized copies per
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Beta Software as is indicated in the appropriate Program
Guide. The MCSP acknowledges that by using a particular Beta
Software product it agrees to the terms and conditions of
the End User License Agreement for that product.
2. With respect to the Beta Online Distribution Process, an End
User License Agreement in electronic form covering each Beta
Software product will be presented on screen during the
online distribution process. The MCSP acknowledges that by
using the Beta Software delivered through this process it
agrees to all the terms of the on screen End User License
Agreement. In addition to the XXXX terms, MCSP understands
and agrees that it shall bear any and all risks relating to
the delivery of the Beta Software through the Internet, a
public computer network that is not secure against intrusion
by unauthorized persons, viruses or other disruptive
elements. MCSP agrees to print and retain a copy of the
applicable on screen XXXX.
3. If the MCSP does not agree with the terms and conditions of
such the End User License Agreement and the additional terms
set forth herein and in subsection 8.B below, the MCSP is
not authorized to the particular Beta Software product.
B. IN ADDITION TO THOSE WARRANTIES SET OUT IN THE XXXX DISPLAYED
ON-SCREEN DURING THE BETA ONLINE DISTRIBUTION PROCESS, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS DISCLAIM ALL IMPLIED
WARRANTIES OF SECURITY (INCLUDING BUT NOT LIMITED TO, SECURITY OF WEB SITES,
SERVERS, TRANSMISSION OR ACCESS), AND ABSENCE OF VIRUSES, WITH REGARD TO ANY
BETA SOFTWARE PRODUCT AND ITS DELIVERY TO MCSP.
C. CONFIDENTIALITY: The MCSP acknowledges and agrees that the Beta
Software it receives is proprietary and confidential information of MICROSOFT
and its suppliers and shall be subject to the terms and conditions of the
Microsoft Non-Disclosure Agreement signed by the MCSP, if any. If the MCSP has
not signed a Microsoft Non-Disclosure Agreement or if the agreement signed is
limited in a manner such that it does not cover pre-release software, then this
section shall apply. Subject to the exceptions set forth below, the MCSP agrees
not to disclose or provide the Beta Software or any information the MCSP learns
about the Beta Software to any third party, nor disclose any such information in
a written publication. The MCSP may, however, disclose the information under
judicial or other governmental order provided that the MCSP gives MICROSOFT
reasonable written notice prior to such disclosure and that the MCSP complies
with any applicable protective order or equivalent. With regard to any versions
of the Beta Software for Microsoft(R) Windows(R), Windows NT(R), MS-DOS(R), and
predecessor or successor versions (including products marketed as replacements)
of these products, this confidentiality provision shall continue in effect until
the earlier of one year from the date that the MCSP receives a Beta CD
containing any such version(s) or the date the associated information is made
public by MICROSOFT. For versions of any other Beta Software, this
confidentiality provision will continue in effect until the earlier
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of three years from the date the MCSP receives a Beta CD containing such
software or the date the associated information is made public by MICROSOFT.
This confidentiality obligation applies only to Beta CDs and the associated Beta
Software that the MCSP receives under the terms of this Agreement.
9. AUDIT
During the Term, MICROSOFT and/or its designated representatives, shall
have full access to the MCSP's pertinent books and records and shall have the
right to make authorized copies of such materials as is reasonable to verify the
MCSP's compliance with this Agreement. MICROSOFT shall conduct such audits
during the MCSP's normal business hours and, from time to time, as MICROSOFT
deems necessary.
10. CONFIDENTIALITY
Except as otherwise provided herein, each party expressly undertakes to
retain in confidence all information and know-how transmitted to the other that
the disclosing party has identified as being proprietary and/or confidential or
that, by the nature of the circumstances surrounding the disclosure, ought in
good faith to be treated as proprietary and/or confidential, and expressly
undertakes to make no use of such information and know-how except under the
terms and during the existence of this Agreement. However, neither party shall
have an obligation to maintain the confidentiality of information that (i) it
received rightfully from a third party prior to its receipt from the disclosing
party; (ii) the disclosing party has disclosed to a third party without any
obligation to maintain such information in confidence; or (iii) is independently
developed by the obligated party. Further, either party may disclose
confidential information as required by governmental or judicial order, provided
such party gives the other party prompt written notice prior to such disclosure
and complies with any protective order (or equivalent) imposed on such
disclosure. Each party shall treat all MICROSOFT product adaptation materials as
confidential information and shall not disclose, disseminate, or distribute such
materials to any third party without the other's prior written permission. Each
party's obligation under this Section shall extend to the earlier of such time
as the information protected hereby falls into the public domain through no
fault of the obligated party or three (3) years following termination or
expiration of this Agreement.
11. NEW PRODUCTS
Notwithstanding any other provisions of this Agreement, MICROSOFT may
elect at any time during the term of the Agreement to announce new MICROSOFT
products to which the terms and conditions of this Agreement may not apply. New
versions, updates, and maintenance releases of existing titles are not
considered new MICROSOFT products.
12. WARRANTIES/LIMITED WARRANTIES/DISCLAIMERS
A. MICROSOFT
Except for any limited express warranties (if any) provided to MCSP
by any applicable license agreement accompanying the Products or Beta Software
(the "Limited
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Warranty"), no other warranties are made with respect to any Products or Beta
Software, Welcome Kits, any program guides, and any other services or materials
provided by MICROSOFT to MCSP (collectively, "MS Materials"). EXCEPT FOR ANY
SUCH LIMITED WARRANTIES (IF ANY) AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, MICROSOFT PROVIDES THE MS MATERIALS `AS IS' AND, WITH RESPECT TO
THE MICROSOFT MATERIALS, HEREBY DISCLAIMS, ALL WARRANTIES, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE PROVISION OR
OPERATION OF ANY MICROSOFT MATERIALS WILL BE TIMELY OR UNINTERRUPTED. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSION MAY NOT APPLY TO THE MCSP. THE LIMITED WARRANTIES AND CONDITION
REFERENCED ABOVE GIVE MCSP SPECIFIC LEGAL RIGHTS. MCSP MAY HAVE OTHERS, WHICH
VARY FROM JURISDICTION TO JURISDICTION. Neither MCSP nor any of its employees or
agents shall have the right to make any representation, warranty, or promise or
give any instructions for use of the Product which instruction is not contained
on the Product label or container, or authorized by Microsoft Corporation.
B. MCSP
MCSP hereby represents and warrants to MICROSOFT as follows:
1. It warrants that all activities undertaken by it as a
Microsoft Certified Solution Provider, including any and all
services offered or provided by it under that designation,
shall be provided with due care and skill, in compliance
with any and all applicable laws in the Territory and in a
manner which will not in any way, directly or indirectly,
bring that designation or any other designation, name or
xxxx with which MICROSOFT is associated into disrepute.
Without limitation to the foregoing, MCSP shall in
particular ensure that any end user complaint in respect of
a product or service shall be dealt with in a reasonable
manner. In this regard MCSP shall be deemed to have acted
reasonably in respect of any such complaint if it responds
promptly and in good faith to any such complaint and assists
MICROSOFT to honor the terms and conditions of the End User
License Agreement applicable to the Product which is the
subject of any such complaint.
2. MCSP hereby agrees to defend, indemnify and hold HARMLESS
MICROS, its successors and parents, subsidiaries and
affiliates and ITS AND their employees, officers and
directors, from and against any loss, damage, costs or
expenses (including reasonable attorney's fees) arising out
of or in any way connected with the performance of the
services or from the MCSP's (or any of its agents or
employees) acts or omissions in connection with this
Agreement.
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3. It hereby represents and warrants that the representatives
of MCSP who have signed this Agreement, or in the case of
Electronic Approval, the MCSP representatives who have
signified MCSP's agreement and consent electronically
online, are the authorized representatives of MCSP duly
empowered to act on behalf of the MCSP and to legally bind
the MCSP. MCSP hereby further represents and warrants that
it has reviewed thoroughly and agrees to all components of
this Agreement, including but not limited to, the Country
Annex, the Site Annex (if applicable), the MCSP Program
Guide and the Final Invoice (MCSP) as it appears in the
format applicable to MCSP either online at
xxxx://xxx.xxxxxxxxx.xxx/xxxx/ and off-line in the
applicable data file download, or on paper as applicable. In
addition, MCSP represents and warrants that all information
provided herein (1) during the online and off-line
contracting process, (2) in the MCSP application, and (3) in
the Agreement is true and correct.
13. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND OTHER DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
MICROSOFT BE LIABLE FOR ANY SPECIAL, INCIDENTAL 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 MS
MATERIALS, EVEN IF MS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANY DAMAGES THAT MCSP MAY
INCUR FOR ANY REASON WHATSOEVER, (INCLUDING WITHOUT LIMITATION, ALL DAMAGES
REFERENCED IN SECTION 13 ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE
LIABILITY OF MICROSOFT UNDER ANY PROVISION OF THIS AGREEMENT, OF THE MICROSOFT
MATERIALS OR UNDER ANY LIMITED WARRANTY, AND MCSP'S EXCLUSIVE REMEDY AGAINST
MICROSOFT (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY MICROSOFT
OR ANY OTHER PERSON UNDER ANY LIMITED WARRANTY), SHALL BE LIMITED TO THE AMOUNT
ACTUALLY PAID BY MCSP FOR THAT PORTION OF THE MS MATERIALS THAT CAUSES THE
DAMAGE.
15. U.S. GOVERNMENT RESTRICTED RIGHTS
All Products provided to the U.S. Government pursuant to solicitations
issued on or after December 1, 1995, are provided with commercial license rights
only. All Products provided to
12
the U.S. Government pursuant to solicitations issued prior to December 1, 1995
are provided with RESTRICTED RIGHTS as provided for in FAR, 48 C.F.R. 52.227-14
(June 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. COMPANY shall
be responsible for ensuring that all Products are marked with the "Restrictive
Rights" legend. Manufacturer is Microsoft Corporation, Xxx Xxxxxxxxx Xxx,
Xxxxxxx, XX 00000-0000.
16. EXPORT RESTRICTIONS
All Products are subject to the export control laws and regulations of the
United States. MCSP agrees that neither MCSP nor its customers intend to or
will, directly or indirectly: (i) export or transmit any Product to any country
to which such export or transmission is restricted by any applicable U.S.
regulation or statute (currently including, but not limited to Cuba, Iran, Iraq,
Libya, North Korea, Sudan and Syria), without the prior written consent, if
required, of the Bureau of Export Administration of the U.S. Department of
Commerce, or such other governmental entity as may have jurisdiction over such
export or transmission; (ii) provide any Product in any manner to any customer,
or end user whom MCSP or its customer knows or has reason to know will utilize
such Product in the design, development or production of nuclear, chemical or
biological weapons, or (iii) to any end user who has been prohibited from
participating in U.S. export transactions by any federal agency of the U.S.
government.
17. GENERAL
A. Except as otherwise provided, all notices, authorizations, and
requests in connection with this Agreement shall be in writing and shall be
deemed received two (2) business days after transmission by facsimile, five
business days after being deposited in the mail (prepaid) for delivery in the
same country, or ten business days after being deposited in the mail (prepaid)
for delivery between different countries, at the addresses set forth in the
Final Invoice (MCSP) or to such other address as the party to receive the notice
so designates by written notice to the other.
B. This Agreement shall constitute the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous communications including all prior and current Microsoft
Certified Solution Provider Agreements. EXCEPT AS OTHERWISE PROVIDED HEREIN,
THIS AGREEMENT SHALL ONLY BE AMENDED IN WRITING OR THROUGH THE ELECTRONIC
DISPLAY OF THE AMENDED AGREEMENT. MCSP SHALL INDICATE ACCEPTANCE OF ANY
AMENDMENTS IN THE MANNER IDENTIFIED IN SECTION 17.X.
X. This Agreement shall be governed by the laws of the country in
which MCSP has its principal place of business. If either MICROSOFT or the MCSP
employs attorneys to enforce any rights arising out of or relating to this
Agreement, the prevailing party shall be entitled to recover reasonable costs
and attorneys' fees.
D. If a particular provision of this Agreement is terminated or held
by a court of competent jurisdiction to be invalid, illegal, or unenforceable,
this Agreement shall remain in full force and effect as to the remaining
provisions.
13
E. No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
F. Neither this Agreement, nor any terms and conditions contained
herein, shall be construed as creating a partnership, joint venture, franchise
or agency relationship.
G. The MCSP agrees that it shall inform its customers that the MCSP
is an independent business from MICROSOFT, and shall not hold itself out as an
agent of MICROSOFT, or attempt to bind MICROSOFT to any third party agreement.
H. Sections 8B, 10, 12, 13, 14, 15, 16, and 17 shall survive the
expiration or earlier termination of this Agreement.
I. This Agreement, and any rights or obligations hereunder, shall
not be assigned, sublicensed, or sub-contracted by the MCSP, without MICROSOFT's
prior written consent.
FOR ANY NEWLY ENROLLING MCSP, TO AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO, THE SITE ANNEX (IF APPLICABLE),
THE COUNTRY ANNEX, THE MCSP PROGRAM GUIDE, THE FINAL INVOICE (MCSP) AND
ANY OTHER APPLICABLE ANNEXES AND ADDENDA (E.G., THE MICROSOFT CERTIFIED
TECHNICAL EDUCATION CENTER ADDENDUM), AN AUTHORIZED REPRESENTATIVE OF THE
MCSP MUST COMPLETE ALL REQUIRED INFORMATION AND SIGN, DATE, AND RETURN TO
MICROSOFT A SIGNED PAPER COPY OF THE FINAL INVOICE (MCSP) AND THE SITE
ANNEX (IF APPLICABLE) TOGETHER WITH A PAYMENT FOR THE APPROPRIATE FEES.
J. FOR ANY RENEWING MCSP, MCSP'S ACCEPTANCE OF ANY AMENDED TERMS OF
THE AGREEMENT SHALL BE INDICATED BY ELECTRONIC ACCEPTANCE AND THE SUBMISSION TO
MICROSOFT OF THE FINAL INVOICE (MCSP), APPROPRIATE FEES AND THE SITE ANNEX (IF
APPLICABLE). IF ELECTRONIC ACCEPTANCE IS NOT RECOGNIZED AS A VALID MEANS OF
ACCEPTANCE IN THE TERRITORY OR IF THE CAPABILITIES OF THE ONLINE CONTRACTING
PROCESS IN MCSP'S TERRITORY ARE LIMITED IN SCOPE, MCSP MUST RETURN A SIGNED
FINAL INVOICE (MCSP), THE APPROPRIATE FEES AND THE SITE ANNEX (IF APPLICABLE) TO
MICROSOFT.
NOTE THAT NO BINDING AGREEMENT IS FORMED UNTIL MICROSOFT HAS FINALLY
APPROVED MCSP AS A MICROSOFT CERTIFIED SOLUTION PROVIDER. IN ADDITION,
NOTE THAT NEITHER THE CASHING OF THE MCSPS CHECK, NOR ACCEPTANCE OF
PAYMENT OF FEES IN ANY MANNER WHATSOEVER, SHALL BE CONSIDERED "ACCEPTANCE"
OF THESE AGREEMENTS BY MICROSOFT. MICROSOFT'S APPROVAL SHALL BE INDICATED
BY MICROSOFT'S ELECTRONIC MAIL
14
NOTIFICATION OF ACCEPTANCE WHICH WILL BE CONFIRMED IN A WRITTEN LETTER
DELIVERED TO A NEW OR RENEWING MCSP WITHIN A MCSP WELCOME KIT.
NOTE THAT IN EUROPE, THE MCSP INVOICE WILL BE DELIVERED TO THE APPLICANT
OR RENEWING MCSP AFTER THE APPLICATION HAS BEEN SUBMITTED AND ACCEPTED AND
THE BODY OF THIS AGREEMENT HAS BEEN RECEIVED BY MCSP.
REMEMBER, FOR NEWLY ENROLLING MCSPS AND FOR ANY RENEWING MCSPS IN A
TERRITORY WHICH DOES NOT RECOGNIZE ELECTRONIC ACCEPTANCE, YOUR SIGNATURE
ON THE FINAL INVOICE (MCSP) INDICATES YOUR ACCEPTANCE OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
15
MICROSOFT(R) CERTIFIED SOLUTION PROVIDER AGREEMENT
MCSP/MICROSOFT CTEC
The terms and conditions set forth herein are incorporated by reference
into the Microsoft Certified Solution Provider Agreement. To the extent any
terms set forth in this Country Annex are in conflict with the Core Terms and
Conditions, the terms set forth herein shall govern.
MICROSOFT ENTITY:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX
XXX
00000
TERRITORY:
For the purposes of this Agreement, the Territory shall be the country in
which the MCSP is located. NOTWITHSTANDING THE FOREGOING, IF AN MCSP IS A MEMBER
OF THE EUROPEAN UNION OR THE EUROPEAN FREE TRADE ASSOCIATION, ITS TERRITORY
SHALL BE DEEMED TO BE BOTH THE EUROPEAN UNION AND THE EUROPEAN FREE TRADE
ASSOCIATION. Notwithstanding the foregoing, if an MCSP is located in the United
States or Canada, its Territory shall be deemed to be both the United States and
Canada. As used herein, "United States" shall mean the continental states and
Hawaii.
COUNTRY SPECIFIC LEGAL TERMS
1. UNITED STATES AND CANADA: The terms and conditions set forth below
shall be added and shall only apply to the Agreement in force in the United
States and Canada:
SECTION 17(C ): If the MCSP has its principal place of business in the
United States of America, this Agreement shall be governed by and
interpreted in accordance with the laws of the State of Washington. MCSP
consents to jurisdiction and venue in King County, Washington.
SECTION 17(K): A new subsection (K) is added to Section 17 as follows: "It
is the express wish of the parties that this Agreement and all related
documents be drawn up in English. C'est la volente expresse des parties
que la presente convention ainsi que les documents qui s'y rattachent
soient rediges en anglais."
*******
2. AUSTRALIA: The terms and conditions set forth below shall be added and
shall only apply to the Agreement in force in Australia:
SECTION 2: The following sentence is added to the end of this Section: "It
is an added condition of this Agreement that MCSP comply at all times for
the duration of this Agreement with all criteria for the appointment of
Microsoft Certified Solution Providers issued from time to time by
Microsoft and in particular, without limitation, any criteria as to net
revenue flowing to MICROSOFT arising out of MCSPs appointment hereunder.
Additionally, all Sites must meet those same criteria for the appointment
of Microsoft Certified Solution Providers."
SECTION 12A: The following sentence is added after the second sentence of
this Section: "TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBJECT
TO SECTION 7 AND ADDITIONALLY TO ANY PROVISION OF THIS AGREEMENT, THE
LIMITED WARRANTIES GIVEN BY MICROSOFT IN THIS AGREEMENT ARE EXCLUSIVE AND
ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS WHATSOEVER, WHETHER
EXPRESS, IMPLIED OR STATUTORY."
SECTION 17: A new subsection (K) is added at the end of Section 17:
Notwithstanding Sections 12A and 14 or any other provision of this
Agreement, if anything arising out of or connected with this Agreement
constitutes a supply of goods or services to a consumer, then Company may
have the benefit of certain rights or remedies pursuant to the Trade
Practices Act and similar state and territory laws in Australia, in
respect of which liability may not be excluded or restricted and nothing
in this Agreement will have the effect of so excluding or restricting
those rights or remedies. Insofar as such liability may not be excluded,
then to the maximum extent permitted by law such liability is limited, at
MICROSOFT's exclusive option, in the case of Services, either by supplying
the services again or the payment of the cost of having the services
supplied again and in the case of goods, to either (a) replacement of the
goods; or (b) correction of defects in the goods.
SECTION 17: A new subsection (L) is added at the end of Section 17:
NOTHING IN THIS AGREEMENT IS INTENDED TO PREJUDICE, OR HAVE THE EFFECT OF
PREJUDICING, ANY RIGHTS MCSP MAY HAVE UNDER AUSTRALIAN LAW OR OF THE
STATES OF AUSTRALIA WHICH CANNOT LEGALLY BE EXCLUDED OR RESTRICTED AND THE
TERMS OF THIS AGREEMENT MUST BE READ ACCORDINGLY.
*******
3. PEOPLE'S REPUBLIC OF CHINA: The terms and conditions set forth below
shall be added and shall only apply to the Agreement in force in the People's
Republic of China.
SECTION 6(A): The following language is added at the end of Section 6(A):
"As more fully described in the Identity Kit, MCSP shall be obliged to
comply with all recorded
2
formalities as a trademark licensee under the applicable laws of the
People's Republic of China."
SECTION 12: A new subsection (C) is added at the end of Section 12: "MCSP
hereby represents and warrants to MICROSOFT at the time of the execution
of this Agreement and during the term of this Agreement:
(1) It is validly established as an enterprise legal person under
the laws of the People's Republic of China;
(2) It has been issued a business license which will be valid
throughout the term of this Agreement;
(3) The scope of business set forth on its business license is
consistent with the activities which it will undertake under
this Agreement;
(4) It has been established with sufficient registered capital to
assume the obligations set out under this Agreement;
(5) It has authority to directly enter into and perform foreign
economic contracts;
(6) Its legal representative or a person validly authorized in
writing by the legal representative has signed this Agreement,
and
(7) Each of the foregoing representations and warranties are true
in respect of any Affiliate which will provide a Site.
SECTION 17(C): The following is added between the first and second
sentences of this Section: "This Agreement will be governed by the laws of
the People's Republic of China. If a dispute arises in connection with the
interpretation or implementation of this Agreement, either party may
submit the dispute for arbitration to Beijing Arbitration Commission (the
"Arbitration Commission") for arbitration in accordance with the rules of
arbitration of such Arbitration Commission. The place of arbitration will
be Beijing, the People's Republic of China. The arbitration proceeding
shall be conducted in English. The arbitral award will be final and
binding on both parties. If either Microsoft or MCSP employs attorneys to
enforce any rights arising out of or relating to this Agreement, the
prevailing party will be entitled to recover reasonable costs and
attorneys' fees.
SECTION 17(D): The following is added at the end of this Section: "Without
limiting the generality of the foregoing, the parties hereby agree that in
the event of any dispute concerning the enforceability of this Agreement,
Section 3 of this Country Annex and Section 12(C) shall be interpreted as
an independent agreement between the parties."
*******
3
4. INDONESIA
SECTION 3A new subsection (F) shall be added as to this Section:
To the extent necessary to implement the termination provisions of this
Agreement, each of the parties hereby waives any right or obligation, it
or the other party may have under any applicable law or regulation,
including without limitation Article 1266 of the Indonesian Civil Code, to
request or obtain the approval, order, decision or judgment of any court
to terminate this Agreement.
SECTION 17: The following language shall be added as subsection 17(K): "It
is the express wish of the parties that this Agreement and all related
documents be drawn up in English."
*******
5. NEW ZEALAND: The terms and conditions set forth below shall be added
and shall only apply to the Agreement in force in New Zealand:
SECTIONS 12 AND 14: Sections 12 and 14 shall only apply to the extent
permitted by law.
A new paragraph C shall be added to Section 12:
"MCSP acknowledges that all Microsoft Software, Services and Products
under this agreement are provided for business purposes and agrees that
the Consumer Guarantees Act does not apply to their supply by Microsoft or
acquisition by MCSP under this Agreement."
A new paragraph D shall be added to Section 12:
(a) Where MCSP is providing Microsoft Software, Services or Products
(as applicable) to:
(i) a consumer acquiring them for business purposes (as that term
is defined in the Consumer Guarantees Act, 1993 ("Business
Purposes"); or
(ii) a person who may, whether directly or indirectly, sell the
Microsoft Software, Services or Products to a consumer
acquiring them for Business Purposes;
it must be a term of the MCSP's contract with that person that
either the Consumer Xxxxxxxxxx Xxx, 0000 ("CGA") does not
apply in respect of the Microsoft Software, Services or
Products (as applicable) or, alternatively, that person will
ensure that an agreement is entered into with the end consumer
of the Microsoft Software, Services or Products (as
applicable)
4
to the effect that the CGA does not apply in respect of such
Software, Services or Products.
The MCSP shall indemnify MICROSOFT and its affiliates and hold MICROSOFT
and its affiliates free and harmless from any costs, expenses, loss or damage
incurred by MICROSOFT or its affiliates as a result of the MCSP or any purchaser
from the MCSP failing to comply with the obligation contained in this Section.
5
