MICROSOFT .NET CONNECTED LOGO PROGRAM TESTING AGREEMENT
Exhibit
10.1
MICROSOFT
.NET CONNECTED LOGO PROGRAM
This
Microsoft .NET Connected Logo Program Testing Agreement
(the
"Agreement") is by and between MICROSOFT CORPORATION, a Washington corporation
("Microsoft"), and the individual or entity who agrees and accepts the following
terms and conditions of this Agreement by typing their name and clicking "I
Accept" below ("Company''). The date upon which this Agreement takes effect
is
the date Microsoft counter accepts this Agreement (the "Effective Date").
Microsoft and Company may be referred to herein individually as a "party" or
collectively as the "parties."
Backqround
A. Company
is the owner or authorized licensor of certain XML web services and applications
defined as "Company Products" herein;
B. Company
desires to Test and certify that its Company Products meet the Microsoft .NET
Connected Logo Program Technical Specifications as identified herein and has
designed the Company Products to be in compliance with the same throughout
the
Term as defined herein; and
C.
Microsoft further desires the right to list Company Products on the ".NET
Connected Directory" for such Company Products certified to be compliant, solely
as permitted by the terms and conditions herein.
Agreement
Now,
therefore,
the
parties agree as follows:
1.
Definitions.
(a)
".NET
Connected Directory" means the online directory located at
xxxx://xxx.xxxxxxxxx.xxx/xxx/xxxxxxxxx for web services and applications that
conform to the Microsoft .NET Connected Logo Program Technical
Specifications.
(b)
"Company
Products" means Company's XML web services and applications.
(c)
"Criteria" means the requirements set forth in the Microsoft .NET Connected
Logo
Program Technical Specifications for the Microsoft .NET Connected
Designation.
(d)
"Microsoft
.NET Connected Designation" means (1) the Base Logo, or (2) the Premium Logo
referenced at, and subject to the terms and conditions of use, located at
xxx.xxxxxxxxx.xxx/xxx/xxxx.
(e)
"Microsoft
.NET Connected Logo Program Technical Specifications" means the technical
requirements and Testing procedures located at
xxx.xxxxxxxxx.xxx/xxx/xxxx.
(f)
"Test",
"Tested" or "Testing" means testing by Company of the Company Product for
compliance with the Microsoft .NET Connected Logo Program Technical
Specifications.
2.
Microsoft
Certification Testing and Standards.
(a)
Microsoft
shall at all times establish the requirements for conformance testing, pursuant
to procedures established by Microsoft from time to time and described in the
Microsoft .NET Connected Program Technical Specifications.
(b)
Company
shall ensure each Company Product meets the Criteria and remains in compliance
throughout the Term as set forth in the then-current Microsoft .NET Connected
Logo Program Technical Specifications.
(c)
Microsoft may post information regarding any Company Product in the .NET
Connected Directory provided (i) such Company Product meets the Criteria
described herein; and (ii) Company continues to support such Company Product
for
operation in compliance with the Microsoft .NET Connected Logo Program Technical
Specifications and has not requested that Microsoft exclude such Company Product
from the .NET Connected Directory. Company may
elect
to
exclude Company Product from the .NET Connected Directory by checking the
appropriate box during registration.
(d)
Company
shall be responsible for maintaining and supporting the Company Products and
shall continue to support the Company Products for so long as each applicable
Company Product is listed in the .NET Connected Directory, and shall notify
Microsoft at least ninety (90) days in advance of any cessation of
support.
3.
Testing
of Company Products.
(a)
Testing
By Company. Company shall conduct Testing of Company Products to ensure to
the
best of Company's knowledge that such Company Product meets the Criteria. Any
and all Testing by Company shall be performed at Company's sole
expense.
(b)
Audit.
Microsoft shall have the right, upon written notice to Company, to conduct
an
audit of any Company Products Tested by Company for the purposes of validating
Test results and ensuring compliance with the Criteria. Within five (5) days
of
the date of the audit notice, Company shall send the Company Products requested
or otherwise enable Microsoft to confirm the applicable Company Products meet
the Criteria. In addition, Company shall also provide Microsoft with any user,
technical reference and/or instruction guides for the Company Products, as
well
as any other documentation or information reasonably requested by Microsoft
for
using Company Products and/or conducting the confirmation activities. If, as
a
result of such audit, Microsoft determines, in its sole discretion, that a
Company Product Tested by Company did not actually pass the relevant conformance
test, Microsoft shall so notify Company in writing, and Company shall have
thirty (30) days from the date of such notice to correct and re-test such
Company Product at Company's expense. In the event the Company Product still
fails conformance testing, Microsoft's acceptance of such Company Product shall
be deemed revoked.
4.
Disclaimer
of Warranties.
MICROSOFT'S
TESTING SERVICES ARE PROVIDED "AS IS" AND WITH ALL FAULTS, AND MICROSOFT
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. IN ADDITION, THERE IS NO WARRANTY OF ACCURACY OF
INFORMATION, FUNCTIONALITY, SERVICES AND/OR AVAILABILITY OR LACK THEREOF FOR
THE
TESTING SERVICES AND/OR ANY MICROSOFT WEBSITE REFERRED TO OR UTILIZED PURSUANT
TO THIS AGREEMENT.
5.
Limitation
of Liabilities.
NEITHER
PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
SPECIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS
PROFITS OR OPPORTUNITIES OR DAMAGES RESULTING FROM DELAYS IN TESTING), EVEN
IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
WILL
MICROSOFT OR ITS AFFILIATES BE LIABLE TO COMPANY, ITS AFFILIATES OR TO ANY
THIRD
PARTY, WHETHER IN CONTRACT (INCLUDING ANY PROVISION OF THIS AGREEMENT), TORT,
OR
OTHERWISE, IN ANY AMOUNT THAT EXCEEDS AMOUNTS PAID BY COMPANY TO MICROSOFT
UNDER
THIS AGREEMENT.
6.
Nondisclosure.
(a)
Subject
to Section 6(b), each party expressly undertakes to retain in confidence all
non-public 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 will 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, however designated, that (i) it received
rightfully from another 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 receiving party. Further, either party may disclose confidential
information as required by governmental or judicial order, provided such party
gives the other prompt notice prior to such disclosure and complies with any
protective order (or equivalent) imposed on such disclosure. Each party's
obligation under this Section 6 shall extend to the earlier of such time as
the
information protected hereby is publicly available through no fault of the
obligated party or five (5) years following receipt of the confidential
information.
(b)
Notwithstanding anything to the contrary herein, Company expressly agrees that
the only information it shall provide under this Agreement shall be limited
to
information necessary solely in connection with Testing to confirm that a
Company Product meets the Criteria through the procedures and standards of
the
Microsoft .NET Connected Logo Program Technical Specifications.
(c)
The
parties' obligations of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or acquire
products without use of the other party's confidential information. Further,
either party shall be free to use for any purpose the residuals resulting from
access to or work with such confidential information, provided that such party
shall maintain the confidentiality of the confidential information as provided
herein. The term "residuals" means information in non-tangible form, which
may
be retained by persons who have had access to the confidential information,
including ideas, concepts, know-how or techniques contained therein. Neither
party shall have any obligation to limit or restrict the assignment of such
persons or to pay royalties for any work resulting from the use of residuals.
However, the foregoing shall not be deemed to grant to either party a license
under the other party's copyrights or patents.
7.
Term
and Termination.
(a) Term.
The
initial term of this Agreement shall commence as of the Effective Date and
shall
continue for a period of one (1) year (the "Term"). This Agreement may be
renewed for additional one (1) year term(s), provided (i) Company is not in
breach of this Agreement; (ii) Company re-Tests each Company Product to certify
that such products comply with the then-current Microsoft .NET Connected Logo
Program Technical Specifications; and (iii) Microsoft counter accepts such
renewal at that time.
(b) Termination.
Either
party may terminate this Agreement at any time upon thirty (30) days' prior
written notice to the other party.
(c) Survival.
Sections
2(d), 3(b), and 4-9 shall survive termination or expiration of this
Agreement.
8.
Notices.
All
notices, authorizations, and requests In connection with this Agreement shall
be
in writing, addressed as stated herein, (or to such other address as the party
to receive the notice so designates by written notice to the other) and shall
be
deemed given when: (i) deposited in the mail, postage prepaid, certified or
registered, return receipt requested; or (ii) sent by air express courier,
charges prepaid. The parties shall fax a copy of any such notices to the fax
numbers identified below on the same day.
MICROSOFT:
Microsoft
Corporation
Xxx
Xxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Attention:
Xxxx Xxxxxxxx
Re:
Microsoft .NET Connected Logo Program Testing Agreement
FAX:
000-000-0000
With
Copy
To:
Microsoft
Corporation
Xxx
Xxxxxxxxx Xxx
Xxxxxxx,
XX 00000-0000
Attention:
Law & Corporate Affairs
Re:
Microsoft .NET Connected Logo Program Testing Agreement
Fax:
000-000-0000
COMPANY:
Information
listed in the registration form.
9.
Miscellaneous.
(a) Governing
Law.
This
Agreement shall be construed and controlled by the laws of the State of
Washington, and Company consents to exclusive jurisdiction and venue in the
federal courts sitting in King County, Washington, unless no federal
jurisdiction exists, in which case Company consents to exclusive jurisdiction
and venue in the Superior Court of King County, Washington. Company waives
all
defenses of lack of personal jurisdiction and forum non conveniens. Process
may
be served on either party in the manner authorized by applicable law or court
rule.
(b)
Attorneys' Fees.
If
either party employs attorneys to enforce any rights arising out of or relating
to this Agreement, the prevailing party shall be entitled to recover its
reasonable costs and attorneys' fees.
(c)
Entire Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all prior and contemporaneous
agreements or communications with respect to the subject matter hereof. This
Agreement shall not be modified except by a written agreement dated subsequent
to the date of this Agreement and signed on behalf of Company and Microsoft
by
their respective duly authorized representatives. For the avoidance of doubt,
nothing in this Agreement shall limit Microsoft's ability to modify the
Microsoft .NET Connected Logo Program Technical Specifications and/or terms
of
use for the Microsoft .NET Connected Designation after the Term. No waiver
of
any breach of any provision 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.
(d)
Prohibition on Assignment.
This
Agreement may be assigned by Microsoft but shall not be assigned by Company
without Microsoft's prior written approval. Except as otherwise provided, this
Agreement shall be binding upon and inure to the benefit of the parties'
successors and lawful assigns.
(e)
No Partnership.
Neither
this Agreement, nor any terms or conditions contained herein, shall be construed
as creating a partnership, joint venture, agency relationship or franchise.
Except as used in this Section, the use of the term "partner" or "partnership"
shall have no legal significance as those terms are construed under the
statutory or common law of any national, state or local
jurisdiction.
(f)
Severability.
If any
provision of this Agreement shall be held by a court of competent jurisdiction
to be illegal, invalid or unenforceable, the remaining provisions shall remain
in full force and effect.
(g)
Section Headings.
The
Section headings herein are for the convenience of the parties and shall not
be
deemed to supersede or modify any provisions.
[Agreement
entered into on January 21, 2003 online by Xxx Xxxxxxxx on behalf of the
Company]
