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EXHIBIT 10.9
Microsoft Solution Provider Program
AGREEMENT
MEMBER LEVEL
SP Company Name: Homecom Communications, Inc.
This Agreement ("Agreement") is between MICROSOFT CORPORATION ("Microsoft"), a
Washington corporation, located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000, and
the Microsoft Solution Provider ("SP") named above whose principal place of
business appears at the end of this Agreement. DO NOT ALTER OR AMEND THIS
AGREEMENT IN ANY MANNER: such alterations, without Microsoft written
acceptance, will void this Agreement.
1. PURPOSE
SP desires to provide comprehensive computer solutions to certain of its
customers, which may include the supply of computer hardware and software and
the provision of product support and training. Microsoft desires to supply
Microsoft software and provide services and support on Microsoft products to
assist SP in providing its customers with such solutions.
2. APPOINTMENT
Microsoft hereby appoints SP as a non-exclusive Microsoft Solution
Provider at the Member level in the Territory defined in the attached Details
Annex, with the authority to promote its goods and services, in association
with Microsoft, in accordance with the terms of this Agreement.
3. TERM AND TERMINATION
This Agreement shall take effect on the date of its acceptance by
Microsoft ("Effective Date"), and unless terminated earlier as provided herein,
shall continue until September 30, 1996. (Acceptance is date indicated in the
confirmation letter from Microsoft to SP, indicating acceptance into the SP
Program). Either party shall have the right to terminate this Agreement at any
time, without cause and without the intervention of the courts, on the giving
of thirty (30) days' prior written notice. Neither party shall be responsible
to the other for any costs or damages resulting from the termination of this
Agreement. Upon expiration or termination of this Agreement, all rights and
benefits granted by this Agreement shall revert to Microsoft and SP shall
immediately cease use of all internal use and training licenses, MSDN and
TechNet licenses and the Solution Provider logo, and shall cease to represent
itself as a Microsoft Solution Provider.
4. PAYMENT
The fee for the appointment as a Microsoft Solution Provider under this
Agreement consists of a basic fee of $1,995 U.S. per year. This fee includes a
$795 U.S. fixed charge for
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product support benefits and a quarterly pro-rated fee of $300 U.S. SP agrees
to pay the fixed basic fee to Microsoft at time of SP signature on this
Agreement.
5. SP RIGHTS AND OBLIGATIONS
(A) TRADEMARKS
The appropriate trademark symbol (either "TM" [standard trademark] or
(R) [registered trademark] in a superscript following the product name) shall be
used whenever a Microsoft product name is mentioned in any advertisement,
brochure, or material circulated or published in any form whatsoever by SP.
The appropriate trademark symbol must be used in conjunction with, at least,
the first reference to each Microsoft product in all SP's circulation or
publications. Microsoft reserves the right to amend any Microsoft trademark,
service xxxx or logo and agrees to notify SP of any such amendments that are
relevant to SP's business. SP agrees to ensure that its use of any such xxxx
and/or logo is amended accordingly.
(B) SALES AND SERVICE REPORTING
When requested by Microsoft, Sales and Service reports shall be
completed by SP and forwarded to the Microsoft address indicated on the
reporting template. Such reports shall be substantially in the format of the
reporting template provided to SP from time to time. Frequency of Sales and
Service reporting is expected to be no more than quarterly. SP warrants that
such reports are true and correct to the best of its knowledge and belief.
(C) MEMBERSHIP APPLICATION AND PROFILE REPORT
SP represents and warrants that all the information provided on its
Membership Application and/or Profile Report 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. Should
there be any changes in such information during the course of this Agreement,
SP agrees to promptly inform Microsoft in writing, given details of such
changes.
(D) MICROSOFT CERTIFIED PROFESSIONAL PERSONNEL
SP warrants that at least one (1) full-time member of its staff is a
qualified Microsoft Certified Professional ("MCP") at SP's principal place of
business at all time during this Agreement. Further, SP shall have one
additional MCP on staff, for a total of two (2), or 100% of technical staff
qualified as MCP(s) by January 1, 1996 for the duration of the agreement.
Technical staff is defined as those employees involved in consulting,
application development and testing, system installation, integration, and/or
migration, technical training or technical support.
(E) SERVICE/SALES ESTIMATES
SP's best estimate is that more than 15% of its revenues are generated
from provision of technical services (custom development, integration,
consulting, training and
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technical support) to its customers. This estimate shall not include those
services, support, training, etc. provided to SP or any of SP's Affiliates,
subsidiaries, branches, divisions, or other related third parties.
6. SOLUTION PROVIDER FEATURES
(A) IDENTITY/LOGO USAGE
SP shall have the right to identify itself as a "Microsoft Solution
Provider" provided that (i) SP continues to comply with Section 5(D) above,
Microsoft Certified Professional Personnel; (ii) SP complies with the then
current Guidelines for Using the Microsoft Solution Provider Logo (available
from Microsoft); and (iii) SP is in full compliance with the terms and
conditions of this Agreement. In the event that any of the above provisions
are not met, SP will immediately cease identifying itself as a Microsoft
Solution Provider. Microsoft reserves the right to amend the Microsoft
Solution Provider logo and any other Microsoft trademark, service xxxx or logo
and agrees to notify SP of any such amendments that are relevant to SP's
business. SP agrees to ensure that its use of the Microsoft Solutions Provider
logo and related trademarks, service marks and logos are amended accordingly.
(B) LICENSE GRANT FOR INTERNAL AND MARKETING USE
Microsoft hereby grants SP a non-exclusive, non-transferable,
royalty-free, terminable license to make and use a total of ten (10) copies of
Windows 95, ten(10) copies of Windows NT workstation, ten (10) copies of
Microsoft Office Professional, ten (10) copies of Microsoft Project, and
Microsoft BackOffice server product [up to five (5) server license of any
server product in the Microsoft BackOffice suite (Windows NT Server, SQL
Server, SMS, SNA Server, Mail Server)] in any combination for a total of no
more than five (5) individual server products, fifty (50) BackOffice client
licenses, one (1) license for Visual Basic Professional, one (1) license for
Visual C++ and one (1) license of Visual FoxPro. These copies may be used for
internal purposes and for marketing demonstrations only. Upgrades to these
products will be provided through the term of the Agreement.
SP is also eligible to acquire various Microsoft products under the
Microsoft Internal Use Product Program. Any products acquired thereby are
governed by the terms and conditions of this paragraph, as well as any terms
and conditions contained on the Microsoft Internal Use Product Program Order
Form.
In all cases, use of the copies is subject to the additional terms of
the End User License Agreement for the corresponding product except that the
copies shall not be resold or transferred to a third party. SP is permitted to
use the copies for marketing demonstrations at the premise of customers provided
that following any demonstrations, the copies, and license to use them, are not
assigned to the customer. The limited warranty, including liability
limitation, contained in the End User License Agreement for each Microsoft
product shall also apply. The terms of the End User License Agreements vary
among different Microsoft products.
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Microsoft reserves the right to change the Microsoft products (and
number of copies) licensed for internal and marketing use, and as may be
provided through the Microsoft Internal Use Product Program, from time to time,
in its sole discretion.
Upon termination or expiration of this Agreement, the rights granted
in this section shall revert to Microsoft and SP shall immediately cease use of
all internal and marketing use licenses, and any licenses provided through the
Microsoft Internal Use Product Program.
(C) TRAINING USE LICENSES
SP may offer training to customers on Microsoft products which are the
subject of this Agreement. SP is solely responsible for all costs and expenses
associated with training. Microsoft hereby grants SP permission to reproduce a
Microsoft product for up to one hundred (100) workstations at a time, for the
sole purpose of providing training on said Microsoft products. Training use of
a Microsoft product is held subject of the following conditions: (i) SP agrees
to destroy all copies at such time as SP is no longer a Microsoft SP; (ii) SP
agrees to destroy all copies used outside of SP location upon completion of
on-site training; (iii) SP may only reproduce Microsoft products for which SP
conducts training classes; (iv) SP agrees to be bound by the terms of the
Microsoft End User License Agreement for each copy, except that these Microsoft
products shall neither be resold nor transferred to a third party, and will
strictly control use of said copy in accordance with the End User License
Agreement; and (v) all copies of the Microsoft product shall be true and
complete copies, including all copyright and trademark notices.
(D) PRODUCT SUPPORT
(i) SP agrees to provide details of SP's network configuration as
requested by Microsoft. Microsoft may determine at any time that SP's network
configuration and topology are not supportable, in which case Microsoft is
under no obligation to provide the product support. Any subsequent changes to
network configuration and topology must be sent to Microsoft in writing, and
Microsoft may redetermine supportability.
(ii) The Microsoft support telephone number and other product support
materials will be provided to SP, and SP's product support will be activated at
the earliest opportunity after the Effective Date.
(iii) Limited Warranty: Microsoft warrants that the teleprocessing
services and support provided hereunder shall reasonably accord with the
service and support description given in the relevant product support materials
available from Microsoft. THIS WARRANTY IS THE ONLY WARRANTY MADE BY MICROSOFT
FOR PRODUCT SUPPORT AND TELEPROCESSING SERVICES, AND IS IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS. SP HEREBY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. It is understood that the provision of
teleprocessing services hereunder is dependent upon the continuous
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availability of communications facilities to Microsoft and that Microsoft
cannot warrant such availability. In addition, Microsoft makes no guarantee of
problem resolution and does not warrant that the support will be uninterrupted
or error-free. SP agrees to take adequate precautions against damage to its
operation that could be caused by such interruption or errors, including making
appropriate data backups. Microsoft cannot be held responsible for any loss of
SP's data.
(E) MSDN AND TECHNET LICENSES
Microsoft hereby grants SP a non-exclusive, non-transferable,
royalty-free, terminable license for one (1) TechNet Server license, ten (10)
MSDN Development Library licenses, and one (1) MSDN Development Platform
license. SP will be provided with updated to one (1) non-transferable set of
CDs to facilitate this. These licenses may be used for internal use and
marketing demonstrations only. This grant amends the End User License
Agreements of MSDN and TechNet; however, the provisions of such End User
License Agreements where unamended remain in full force and effect.
(F) PROMOTIONAL MATERIALS
Microsoft may, in its sole discretion, reference SP in advertising and
promotional materials in connection with the sale and promotion of Microsoft
products. Uses of SP's name include but are not limited to: lists of SP's for
customer information, advertising of SP program containing SP's name, etc.
When a specific advertisement or promotion containing only SP's name is
planned, Microsoft will obtain SP's written permission before such use.
Microsoft shall also obtain SP's written permission before use of any logo of
SP.
(G) CHANGES IN SP AGREEMENT FEATURES
SP understands that Microsoft may expand, change the scope of content
of, and/or delete, any features offered under the Solution Provider program. In
the event that Microsoft adversely changes any program features, and should SP
be dissatisfied with those changes, SP may terminate this Agreement in
accordance with Section 3 and will have no other recourse against Microsoft.
7. CONFIDENTIALITY
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 (or a subsequent Solution Provider 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
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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 shall treat the
terms and conditions of this Agreement as confidential; however, SP may
disclose such information in confidence to its immediate legal and financial
consultants as required in the ordinary course of its business. 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 of five (5) years following termination or expiration of
this Agreement.
8. 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.
9. WARRANTIES/LIMITED WARRANTIES
Microsoft warrants all Microsoft products provided to SP under the terms
of this Agreement on the terms set out in the written limited warranty document
accompany each such product. THESE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON MICROSOFT'S PART EXCEPT
AS OTHERWISE PROVIDED BY APPLICABLE LAW.
10. LIMITATION OF LIABILITY
Subject to applicable law, neither Microsoft nor anyone else who has been
involved in the creation, production, or delivery of the products or services
that are the subject of this Agreement shall be liable for any direct,
indirect, consequential or incidental damages (including damages for loss of
business profits, business interruption, loss of business information and the
like) arising out of the use of or inability to use the Microsoft products, or
provision of, or failure to provide, support, even if Microsoft has been
advised of the possibility of such damages. Because some jurisdictions do not
allow the exclusion or limitation of consequential or incidental damages, the
above limitation may not apply. In any event, except as otherwise provided by
law, the liability of Microsoft or its suppliers, whether for negligence,
breach of contract, breach of warranty, or otherwise, shall, in the aggregate,
not exceed the amount paid to Microsoft by SP hereunder.
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11. GENERAL
(a) All notices, authorizations, and requests in connection with this
Agreement shall be deemed given two (2) business days after they are sent by
registered mail, and addressed as follows:
SP: (name and address as set forth at the end of this Agreement)
Microsoft : (name and address as set forth in the Details Annex)
Attn: Microsoft Solution Provider Program, Program Marketing Manager
cc: Legal Department
or to such other address as the party to receive the notice so designates
by written notice to the other.
(b) This Agreement and the Details Annex 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
Solution Provider Agreements. It shall not be modified except by a written
agreement dated subsequent to the Effective Date of this Agreement and signed
on behalf of SP and Microsoft by their respective duly authorized
representatives.
(c) 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.
(d) 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
of any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(e) Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, joint venture, franchise or
agency relationship.
(f) SP agrees that it shall inform its customers that SP 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. SP shall
defend, indemnify, and hold harmless Microsoft from and against all
liabilities, claims, costs, fines, and damages of any type (including
attorney's fees) arising out of or in any way related to SP's delivery of
training services and/or product support to its customers
(g) This Agreement, and any rights or obligations hereunder, shall not be
assigned or sublicensed by SP, without Microsoft's prior written consent.
(h) This Agreement shall be governed by the laws of the State of
Washington and SP consents to jurisdiction and venue in the state and federal
courts sitting in the State of Washington. If either Microsoft or SP employs
attorneys to enforce any rights arising out of or
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relating to this Agreement, the prevailing party shall be entitled to recover
reasonable costs and attorney's fees.
Accepted:
SP
Company Name: HomeCom Communications
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Signature: /s/ Xxxxxx Xxx
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Name (printed): Xxxxxx Xxx
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Job title: President
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Address: 00 Xxxxxxxx Xxxxxx, Xxxxx 000
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3535 Piedmont Road
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Xxxxxxx, XX 00000
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MICROSOFT
Signature: /s/
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Name (printed):
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Job Title:
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Address:
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MICROSOFT SOLUTION PROVIDER AGREEMENT
MEMBER LEVEL
DETAILS ANNEX
1. TERRITORY
For the purpose of this Agreement, the Territory shall be 1) the USA, excluding
U.S. territories, U.S. possessions, and Puerto Rico, and 2) Canada.
2. FEE
Basic Fee
Basis Solution Provider fee is $1,995 U.S. per year or $795 U.S. per year plus
$300 U.S. per quarter.
The following fee schedule applies to all new and renewing Solution Providers
(and applies to each SP Affiliate as well, as applicable) and provides program
membership through September 30, 1996.
RENEWALS
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United States Canada (GST included)
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August 1995 $1,995 U.S. $2,989 CDN
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NEW ENROLLMENT
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If we receive your completed
application between United States Canada (GST included)
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August 1, 1995 - December 31, 1995 $1,995 U.S. $2,989 CDN
January 1, 1996 - March 31, 1996 $1,695 U.S. $2,539 CDN
April 1, 1996 - June 30, 1996 $1,395 U.S. $2,090 CDN
July 1, 1996 - September 30, 1996 $1,095 U.S. $1,640 CDN
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3. SUPPORT
A Priority Comprehensive 10-pack is a non-optional feature of the SP Program
and is included in the Basic Fee for $795 U.S.
4. ADDRESS
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All notices, authorizations, and requests in connection with this agreement
should be sent by registered mail to:
One Microsoft Way
Attn: Microsoft Solution Provider Program Marketing Manager
CC: Legal
Xxxxxxx, XX 00000
All profile updates should be sent to:
Microsoft Corporation
Solution Provider Application Processing
X.X. Xxx 00000
Xxxx Xxxx Xxxx, XX 00000-0000
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