1
EXHIBIT 10.25
[MICROSOFT CORPORATION LETTERHEAD]
MICROSOFT(R) DIRECT COMMERCIAL SERVICE LICENSE AGREEMENT
AGREEMENT NUMBER 40000707
EFFECTIVE START DATE MAY 21, 1999
EFFECTIVE END DATE JUNE 30, 2001
MICROSOFT ACCT. MGR. MIKE VANDERIES
DAVID BOLINK
FUTURELINK DISTRIBUTION CORPORATION
#300, 250-6TH AVE SW
CALGARY, ALBERTA T2P 3H7
CANADA
May 24, 1999
Welcome
This letter confirms that Microsoft has received and processed your Direct
Commercial Service License Agreement and that you may now obtain media from
Microsoft World Wide Fulfillment ("WWF") for the Commercial Use Products. Below
is the information on how you may obtain the media by Region. You may also
purchase full packaged product from any reseller. All orders fulfilled through
WWF must be prepaid, no credit terms will be extended.
OBTAINING MICROSOFT PRODUCTS FOR COMMERCIAL USE - SECTION 2(d)
REGION PHONE FAX EMAIL
- -------------------- -------------- -------------- -----------------------------
UNITED STATES (800) 248-0655 (800) 554-8261 WWFOrderCenter@ModusMedia.com
CANADA, LATAM, NA NA WWFOrderCenter@ModusMedia.com
SE ASIA, FAR EAST,
SOUTH PACIFIC
EUROPE, AFRICA, (353) 1-803-7210 (353) 1-803-7216 English: msen@msorder.ie
MIDDLE EAST French: msfr@msorder.ie
German: msde@msorder.ie
Italian: msit@msorder.ie
Swedish/Finnish/Norwegian/Danish:
msscan@msorder.ie
Spanish: msesp@msorder.ie
Portuguese: msport@msorder.ie
If you have any questions regarding the Microsoft Direct Commercial Service
Agreement, please contact your Microsoft Account Manager.
Sincerely,
Microsoft Special Agreements
(c) 1999 Microsoft Corporation. All rights reserved. Microsoft is a registered
trademark of Microsoft Corporation in the United States and/or other countries.
2
MICROSOFT WILL COMPLETE:
Direct Commercial Agreement Number 40000707
MICROSOFT DIRECT COMMERCIAL SERVICE LICENSE AGREEMENT
This Microsoft Direct Commercial Service License Agreement (this
"Agreement") is by and between the Commercial Service Provider which has
executed this Agreement below ("Company") and Microsoft Corporation, a
Washington corporation ("Microsoft").
OVERVIEW - Microsoft Direct Commercial Service licensing is a program that
allows a Commercial Service Provider to copy, and obtain Licenses to use,
Microsoft software products for Commercial Services. A Commercial Service
Provider is responsible for obtaining the necessary media for each Commercial
Use Product it wishes to copy and use. Media may be obtained directly from
Microsoft World Wide Fulfillment or through any reseller as full package
product. A Commercial Service Provider is then permitted to make one or more
copies of each such product pursuant to the terms contained in this Agreement,
subject to an obligation to order one or more Licenses from Microsoft for each
copy. For each License ordered, the Commercial Service Provider will pay
Microsoft the fees outlined in the Microsoft Direct Commercial Price List in
effect at the time the relevant order is submitted to Microsoft. A Commercial
Service Provider is permitted to acquire Licenses for Commercial Services only
and may not acquire Licenses under this Agreement for its internal use or for
the internal use of its Affiliates.
1. DEFINITIONS. Unless otherwise defined, all capitalized terms used in this
Agreement shall have the meanings provided below:
"AGREEMENT" shall mean this Direct Commercial Service License Agreement
and any Addenda attached hereto.
"AFFILIATE" shall mean a company or legal entity which owns or controls,
is owned or controlled by, or is under common ownership or control with,
the Company or Microsoft as applicable.
"COMMERCIAL SERVICE PROVIDER" shall mean an individual or entity that
provides Commercial Services to a Third Party. Examples of Commercial
Services are set forth below.
"COMMERCIAL SERVICES" shall mean software services provided to Third
Parties such that the Third Party does not have to acquire the Licenses itself.
Commercial Services does not include services provided to Company's Affiliates
for their own internal use. Examples of Commercial Services include (but are not
limited to):
o Services provided as part of an Internet access service for Third Parties,
such as providing online services or Internet access for consumers or
businesses;
o Hosting communications services for Third Parties, such as virtual private
network, voice over IP, video conferences, etc.;
o Hosting an E-Commerce, Internet, Intranet and/or Extranet web site(s) on
behalf of a Third Party through either shared or dedicated servers;
o Hosting application services on behalf of a Third Party by providing file
and print, database, messaging or E-Commerce capabilities;
o Hosting software applications on behalf of a Third Party which includes
asset management, software distribution and management, network
management and performance tuning, etc.; and
o Hosting Independent Software Vendor applications where Third Parties'
applications are built on top of Microsoft technology.
"COMMERCIAL USE PRODUCTS" shall mean the Microsoft software products which
Microsoft makes available for Commercial Services to Commercial Service
Providers and which may be reproduced pursuant to this Agreement. The Direct
Commercial Price List will contain the entire list of available Commercial Use
Products. Microsoft may change the list of available Commercial Use Products at
any time, and from time to time, to add or remove products.
"COMMERCIAL USE LICENSE AGREEMENT" or "CULA" shall mean the document which
contains the specific terms and conditions pursuant to which use of a
particular Commercial Use Product is subject. This document will be provided to
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 1 of 10
3
Company by Microsoft or made available to Company by publication on the World
Wide Web at a site identified by Microsoft to Company or made available to
Company by some other means prior to the placement of any orders.
"EFFECTIVE DATE" shall mean the date this Agreement is signed by Microsoft.
"LICENSE" shall mean a right granted by Microsoft to use or access a copy of
a Commercial Use Product (e.g., a Commercial Service Server License) subject
to this Agreement, the CULA(s) for such Commercial Use Product and the
Product List.
"PRODUCT LIST" shall mean the Direct Commercial Service Licensing Product
List, or any subsequent version thereof, which is made available to the
Company by or on behalf of Microsoft from time to time and identifies
specific terms and conditions (in addition to those provided in the CULA(s)
and this Agreement) for particular Commercial Use Products.
"THIRD PARTY" shall mean an individual, company or legal entity ("person")
other than (i) an Affiliate, (ii) persons employed by the Company (as an
employee, contractor or in any other capacity), (iii) persons providing goods
or services to the Company (for example, a supplier) or (iv) persons
providing goods or services on behalf of the Company (for example a
distributor or reseller).
2. ORDERING OF LICENSES.
a. PURCHASE ORDER AND THIRD PARTY INFORMATION. The Company shall submit to
Microsoft an order for a License for each copy (or access right) of a
Commercial Use Product it has made (or provided) during the immediately
preceding calendar month. Each order shall specify the country of usage of
each copy made (or access right provided) and shall provide other
information relative to Licenses acquired on behalf of Third Parties. In
addition, the order shall contain information on newly formed contracts
between Company and Third Parties for Commercial Services utilizing
Microsoft Commercial Use Products. This order shall be in the form
attached as Addendum A, as such form may be modified by Microsoft from
time to time. The order must be delivered to Microsoft, on a calendar
monthly basis, no later than the 15th day of the month, whether or not any
copies were made or access rights provided in the preceding month. A
Company's failure to submit an order within the required time frame shall
be grounds for termination of this Agreement, and use rights shall expire
for any copies made by the Company pursuant to this Agreement for which
the Company has not ordered and paid. Upon receipt of Company's order(s)
pursuant to this Section 2.a., Microsoft will issue an invoice indicating
the number and type of Licenses to Commercial Use Products acquired by the
Company and reported to Microsoft during a specified month. Such invoice,
together with proof/record of payment, shall constitute the confirmation
for such Licenses. Any information provided to Microsoft pursuant to this
order shall be used solely for revenue calculation, internal revenue
allocation, and billing purposes and shall not be used to directly target
or otherwise contact Third Party customers of Company without Company's
prior approval.
b. PRICING. The fees for Licenses shall be set by Microsoft from time to time
and shall be set forth on a Direct Commercial Price List which shall be
issued by Microsoft on a monthly basis. Microsoft shall determine the
method of delivery of such Direct Commercial Price List to Company.
Notwithstanding changes to the Direct Commercial Price List, if Company
has contracted with a Third Party customer to provide Commercial Services
and has acquired Licenses for Commercial Use Products for the benefit of
such Third Party customer, Microsoft shall not increase the fees for the
Licenses acquired for the benefit of such Third Party customer during (i)
the period of the existing contract between Company and such Third Party
customer or (ii) twenty-four (24) months, whichever is shorter.
c. PAYMENT TERMS. All amounts are due and owing net thirty (30) days after
date of invoice from Microsoft. All payments not received by Microsoft
from Company within the required time frame may be assessed a finance
charge of two percent (2%) of the invoice amount per month or the legal
maximum, whichever is less. Payment by the Company to Microsoft is not
contingent on payment by a Third Party customer to the Company. All
payments to Microsoft by Company shall be in the form of bank wire
transfer or electronic funds transfer through an Automated Clearing House
("ACH") with electronic remittance detail attached.
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 2 of 10
4
Payment shall be remitted to:
WIRE TRANSFERS*:
Microsoft Services #844510
Attn: Special Agreement Payments
Account #3750825354
ABA #11100001-2
Nations Bank of Texas NA
Dallas, TX
* Remittance detail must be sent by: Fax: (425)936-7329,
Attention: Special Agreement Payments
Email: spagpay@microsoft.com
d. FULFILLMENT. Company may obtain the media for Commercial Use Products from
Microsoft World Wide Fulfillment ("WWF") or from any reseller of full
package product. All orders through WWF will require prepayment; no credit
terms will be extended. Contact information for WWF will be provided at
the time this Agreement is executed by Microsoft or as determined by
Microsoft from time to time.
3. LICENSE GRANTS.
a. LICENSE TO MAKE AND USE COPIES. Subject to its obligation to order and pay
for the appropriate number of Licenses in a timely fashion as set forth in
Section 2.a. above, at any time during the term hereof, the Company may
make and use copies of, and provide access to, the Commercial Use
Products. Any such copy may be made only from legally acquired media as
outlined in Section 2.d. above. All copies of Commercial Use Products made
pursuant to this Section must be true and complete copies, and must
include all copyright and trademark notices.
b. USE TERMS. Each copy made, or access right provided, pursuant to the right
granted in Section 3.a. above may be used only to provide Commercial
Services to Third Parties subject to and strictly in accordance with the
license grants, terms, conditions, limitations and restrictions contained
in this Agreement and the provisions of the then most recently released
version of the applicable CULA and Product List. Microsoft may amend any
CULA and/or the Product List at any time, and from time to time; provided,
however, that no such change will ever retroactively alter the terms under
which Company may use a copy of a Commercial Use Product previously
licensed to Company. If the requirements of the preceding sentence have
been complied with, the revised CULA(s) and/or Product List shall take the
place of the existing version(s) as of the effective date identified in
the notice, and each copy of a Commercial Use Product made on or after
that date shall be subject to the terms thereof, as amended. By signing
this Agreement, Company acknowledges that it and its Affiliates have
access to the World Wide Web.
c. PRINTED MATERIALS. Company may not copy any Microsoft guides, manuals or
other printed materials describing or explaining any of the Commercial Use
Products. The Company may acquire copies of any such guides, manuals or
other printed materials from WWF or from a Microsoft approved fulfillment
source in quantities that do not exceed, with respect to a Commercial Use
Product, the number of Licenses of such Commercial Use Product the Company
has acquired.
4. EVALUATION AND TESTING LICENSE. Microsoft hereby grants to Company a License
for up to sixty (60) days after the Effective Date to evaluate and test the
Commercial Use Products on the terms and conditions set forth below and for
no other purpose. Copies of Commercial Use Products for this purpose shall be
obtained as set forth above in Section 2.d. No License fee shall be due and
payable for such evaluation and testing License.
a. LICENSE GRANT. Company may reproduce, install and use an unlimited number
of copies of the Commercial Use Products within its own facilities solely
to evaluate the Commercial Use Products, subject to the rights and
limitations of Section 4.b. below. The Commercial Use Products may be
connected at any point in time to an unlimited number of workstations or
computers operating on one or more internal Company networks.
b. OTHER RIGHTS AND LIMITATIONS. Company may not reverse engineer, decompile,
or disassemble the Commercial Use Products, except and only to the extent
that such activity is expressly permitted by applicable law
notwithstanding this limitation. Company may not otherwise rent, lease, or
transfer the Commercial Use Products. Microsoft reserves all rights not
expressly granted herein.
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 3 of 10
5
c. NO WARRANTIES. FOR PURPOSES OF THE EVALUATION AND TESTING LICENSE, THE
COMMERCIAL USE PRODUCTS AND ANY RELATED DOCUMENTATION ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, OR INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE
OR PERFORMANCE OF THE COMMERCIAL USE PRODUCTS REMAINS WITH COMPANY.
d. NO LIABILITY FOR DAMAGES. IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE
LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR
INABILITY TO USE THE COMMERCIAL USE PRODUCTS, EVEN IF MICROSOFT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. FACILITATING COMPLIANCE.
a. NOTICE TO USERS. The Company shall use reasonable efforts to make its
employees, agents and other individuals using the Commercial Use Products
under this Agreement aware that the Commercial Use Products (i) are
licensed by Microsoft, (ii) may only be used subject to the terms and
conditions contained in this Agreement and the applicable CULA(s) and
Product List, and (iii) may not be copied, transferred or otherwise used
in violation of such terms and conditions.
b. AUDIT. During the term of this Agreement and for two (2) years thereafter,
Company agrees to keep all usual and proper records relating to its
reproduction and use of the Commercial Use Products. Notwithstanding the
provisions of any particular CULA(s) and the Product List, in order to
verify Company's compliance with the terms of this Agreement, during the
term of this Agreement and for two (2) years thereafter, Microsoft may
cause (i) an audit to be made of Company's books and records and/or (ii)
an inspection to be made of Company's facilities and procedures. Any audit
and/or inspection shall be conducted during regular business hours at
Company's facilities, with at least three (3) days' notice, and in such a
manner as not to interfere unreasonably with the operations of the
Company. Any audit shall be conducted by an independent certified public
accountant selected by Microsoft (other than on a contingent fee basis).
Company agrees to provided Microsoft's designated audit or inspection team
access to the relevent Company records and facilities. In any event, the
Company shall promptly acquire sufficient Licenses to permit all usage
disclosed by any such audit. In addition, if any such audit discloses
material unlicensed use of Commercial Use Products, Company shall pay to
Microsoft an amount equal to: (i) the reasonable expenses incurred in
conducting such audit; plus (ii) an additional License fee of twenty
percent (20%) of the estimated retail price established by Microsoft of
the Licenses required to be acquired pursuant to the preceding sentence.
For purposes of this section, "material unlicensed use of Commercial Use
Product" shall exist if, upon audit, it is determined that, with respect
to any Commercial Use Product the Company has Licenses for fewer than
ninety-five percent (95%) of the copies disclosed by the audit. Microsoft
shall use the information obtained or observed in the audit solely for the
purposes of (x) determining whether the Company has sufficient Licenses
for the Commercial Use Products it is using and has otherwise complied
with the terms of this Agreement, (y) enforcing its rights under this
Agreement and any applicable laws, and (z) determining if customer has
accurately reported Third Party contract information to Microsoft.
Microsoft will hold all such information in confidence.
6. SUPPORT. This Agreement does not include technical or integration support by
Microsoft to Company or Company's Third Party customers. Company is strongly
encouraged to sign a Microsoft Consulting Services Agreement to address the
technical requirements needed to provide Commercial Services using Microsoft
technology. Company agrees to provide commercially reasonable telephone
support to Third Party customers and, in connection therewith, is required to
obtain technical support by means of a separate agreement with Microsoft, a
Microsoft Affiliate, a Microsoft Authorized Support Center, or a Microsoft
Solution Provider. Nothing in this provision shall be deemed to obligate
Microsoft or a Microsoft Affiliate to provide such technical support. Company
must indicate its intentions with regard to technical support on the Company
Information section provided beneath the parties' respective signatures
below.
7. TERM; TERMINATION.
a. TERM. Company may obtain Licenses for Commercial Use Products under the
terms of this Agreement following the Effective Date through June 30, 2001
(the "Term") unless this Agreement is otherwise terminated as provided
below. Notwithstanding the Term, if this Agreement has not been terminated
by Microsoft as a result of Company's breach and if Company has contracted
with a Third Party customer to provide Commercial Services, Microsoft
shall
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 4 of 10
6
extend to Company the right to continue offering the Licenses required
to support such Third Party customer for the existing contract period
between Company and its Third Party customer or twenty-four (24)
months, whichever is shorter.
b. TERMINATION. Either party may terminate this Agreement for cause, as a
result of a breach by the other party of any of the terms and
conditions of this Agreement, upon thirty (30) days' prior written
notice advising the breaching party of the nature of the breach,
provided that such breach is not thereafter cured within such thirty
(30) day period. Notwithstanding the foregoing, a breach by Company of
Section 3.b., 8 or 9.c. of this Agreement or a breach in a material
respect of any provision of the CULA(s) and/or Product List shall
constitute grounds for immediate termination of this Agreement, upon
written notice and without an opportunity to cure.
c. OBLIGATIONS ON TERMINATION OR EXPIRATION. Except as provided in
Section 7.a., termination or expiration of this Agreement shall
automatically terminate the rights of Company under it, including the
right to make and use additional copies of Commercial Use Products
pursuant to the terms of this Agreement. Upon termination or
expiration of this Agreement, Company shall immediately submit an
order for any Licenses based on actual usage to the date of such
termination or expiration which have not been previously ordered and
which by the terms of the CULA(s) and/or Product List are required to
be ordered after the month of actual usage, such as Commercial Service
Access Licenses. Licenses ordered by Company and for which Company has
paid prior to the termination or expiration of this Agreement shall
continue, and expire if appropriate, according to their terms
notwithstanding the termination or expiration of this Agreement.
Notwithstanding the foregoing, upon termination of this Agreement as a
result of the Company's breach (and not as a result of any other
termination or expiration), Company shall deliver to Microsoft, or at
Microsoft's direction, destroy (and have all Third Party customers
destroy, if applicable), all units of Commercial Use Products for
which Licenses were acquired pursuant to this Agreement. There shall
be no refund of amounts paid for Commercial Use Products which have
been so returned or destroyed.
8. PROHIBITION ON ASSIGNMENT. Except as provided in Section 9.c., this
Agreement, and any rights or obligations hereunder, shall not be assigned,
sublicensed or otherwise transferred by Company, whether by contract,
merger, operation of law, or otherwise, without the prior written approval
of Microsoft. Microsoft may transfer its respective rights and obligations
hereunder to any Affiliate without the prior written approval of Company;
provided that Microsoft shall remain liable, in accordance with this
Agreement, for all Licenses it has provided or was obligated to have
provided prior to the date of transfer. Any prohibited assignment is null
and void.
9. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement, including any Addenda attached
hereto and the CULA(s), the Product List and the Direct Commercial
Price List in effect from time to time and Licenses obtained
hereunder, once accepted by Microsoft as evidenced by Microsoft's
signature and the issuance of a Direct Commercial License Agreement
Number, constitutes the entire agreement between Microsoft and the
Company concerning the subject matter hereof and merges all prior and
contemporaneous communications with respect to such subject matter.
The terms and conditions of these documents shall control over any
provisions in any purchase order. To the extent that there is any
direct inconsistency between the terms contained in this Agreement and
the CULA(s) and/or Product List, the terms of this Agreement shall
control. Similarly, to the extent that there is any direct
inconsistency between the terms contained in the Product List and the
CULA, the terms of the Product List shall control. For the avoidance
of doubt, in the event that a subject or a particular use is addressed
in a provision in the CULA or the Product List and not in the
Agreement, such provision in the CULA or Product List, as applicable,
shall control. Except for the Direct Commercial Price List, CULA(s)
and Product List, any representations, promises or conditions in
connection with this Agreement not in writing signed by all affected
parties shall not be binding. This Agreement, other than the Direct
Commercial Price List, CULA(s) and Product List, may only be changed
by a written instrument signed by both parties. The CULA(s) and
Product List may be amended by Microsoft as provided in Section 3.b.
above and the Direct Commercial Price List may be amended by Microsoft
as provided in Section 2.b. above.
b. NOTICES. All notices, authorizations and requests in connection with
this Agreement shall be deemed given on the day they are (i) deposited
in the mail, postage prepaid, certified or registered, return receipt
requested; or (ii) sent by air express courier (e.g., DHL, Federal
Express, Airborne), charges prepaid, confirmation requested; and
addressed as provided beneath the parties' respective signatures
below.
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 5 of 10
7
c. SUBLICENSE, TRANSFER OR ASSIGNMENT OF LICENSES.
i. APPLICABILITY. The rights set forth in this Section 9.c.
apply only with respect to Licenses which are perpetual; that is,
acquired by means of a one-time License fee as opposed to a monthly or
other periodic License fee.
ii. TO AFFILIATES. Subject to the requirements identified in
Section 9.c.v. below, Company may sublicense, transfer or assign
Licenses acquired under this Agreement to an Affiliate, but not to any
person or entity other than an Affiliate. The Company shall be
responsible for all acts and omissions of the Affiliates to which it
sublicenses, transfers or assigns Licenses. The Company shall require
any Affiliate to whom Company has sublicensed, transferred or assigned
Licenses to notify the local Microsoft subsidiary in the country where
such Affiliate will be using the Commercial Use Products that such
sublicense, transfer or assignment has occurred, or begun to occur.
iii. PURSUANT TO A MERGER, CONSOLIDATION OR DIVESTITURE. Subject
to the requirements identified in Section 9.c.v. below, the Company
(with respect to its validly-acquired Licenses) or any Affiliate to
which the Company has sublicensed, transferred or assigned
validly-acquired Licenses pursuant to the preceding paragraph, may
transfer such Licenses to any Third Party pursuant to a merger,
consolidation or other corporate/organizational divestiture or
acquisition, without the written consent of Microsoft.
iv. WITH CONSENT. Except as provided in Sections 9.c.ii. and
iii. above, Company may not sublicense, transfer or assign any
Licenses without the prior written consent of Microsoft, and any such
sublicense, transfer or assignment shall be null and void.
v. LIMITATIONS AND REQUIREMENTS. Company may not sublicense,
transfer or assign a License to any party unless (x) it transfers all
of the licensed Commercial Use Product (including all component
parts, the media and printed materials, any upgrades, the invoice from
Microsoft evidencing the rights being transferred, the proof/record of
payment and, if applicable, the Certificate of Authenticity); (y) the
recipient agrees in writing to the terms of the applicable CULA(s) and
Product List and of Sections 5 and 9 of this Agreement (in which event
such recipient shall be bound by all limitations and restrictions to
the same extent as if it was the "Company"); and (z) the recipient
certifies that it will use such Commercial Use Products for Commercial
Services and not for internal use. If the Company sublicenses,
transfers or assigns its rights in one or more Licenses identified on
any invoice to one or more of its Affiliates, then it shall provide a
copy of such invoice and proof/record of payment, to each such
Affiliate, identifying the number and type of Licenses which have been
sublicensed, transferred or assigned. If the Commercial Use Product is
an upgrade, any sublicense, transfer or assignment must include all
prior versions of the Commercial Use Product. A Company or Affiliate
may not sublicense, transfer or assign Licenses on a short-term basis.
d. TAXES.
i. The amounts to be paid by Company to Microsoft herein do not
include any foreign, U.S. federal, state, local, municipal or other
governmental taxes, duties, levies, fees, excises or tariffs, arising
as a result of or in connection with the transactions contemplated
under this Agreement including, without limitation, any state or local
sales or use taxes or any value added tax or business transfer tax now
or hereafter imposed on the provision of goods and services to Company
by Microsoft under this Agreement, regardless of whether the same are
separately stated by Microsoft. All such taxes (and any penalties,
interest, or other additions to any such taxes), with the exception of
taxes imposed on Microsoft's net income or with respect to Microsoft's
property ownership, shall be the financial responsibility of Company.
Company agrees to indemnify, defend and hold Microsoft harmless from
any such taxes or claims, causes of action, costs (including, without
limitation, reasonable attorneys' fees) and any other liabilities of
any nature whatsoever related to such taxes.
ii. Company will pay all applicable value added, sales and use
taxes and other taxes levied on it by a duly constituted and
authorized taxing authority on the software or other products provided
under this Agreement or any transaction related thereto in each
country in which the services and/or property are being provided or in
which the transactions contemplated hereunder are otherwise subject to
tax, regardless of the method of delivery. Any taxes that (i) are owed
by Company as a result of entering into this Agreement and the
payment of the fees hereunder, (ii) are required or permitted to be
collected from Company by Microsoft under applicable law, and (iii)
are based upon the amounts payable under this Agreement (such taxes
described in (i), (ii), and (iii) above the "Collected Taxes"), shall
be remitted by Company to Microsoft, whereupon, upon request,
Microsoft shall provide to Company tax receipts or other evidence
indicating that such Collected Taxes have been collected by Microsoft
and remitted to the
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 6 of 10
8
appropriate taxing authority. Company may provide to Microsoft an
exemption certificate acceptable to Microsoft and to the relevant
taxing authority (including without limitation a resale certificate)
in which case, after the date upon which such certificate is received
in proper form, Microsoft shall not collect the taxes covered by such
certificate.
iii. Notwithstanding any provision herein to the contrary,
Customer agrees that each payment to be made to Microsoft hereunder
shall be free of all withholding taxes imposed by any jurisdiction,
and if any such withholding is required, Customer shall pay an
additional amount such that after deduction of all amounts required to
be withheld, the net amount of the payment will equal, on an after tax
basis, the amount of the payment that would be due absent such
withholding.
iv. This tax section shall govern the treatment of all taxes
arising as a result of, or in connection with, this Agreement
notwithstanding any other section of this Agreement.
e. GOVERNING LAW. This Agreement shall be construed and controlled by
the laws of the State of Washington.
f. SURVIVAL. Provisions of Sections 2.c., 3.b., 4.b., c. and d., 5., 7.a.
and c. and 9 of this Agreement, the applicable CULA(s) and Product
List for any fully-paid up Licenses, and warranty, limitation on
liability and indemnification provisions in the CULA(s) and Product
List for Licenses acquired pursuant to this Agreement, shall survive
the termination or expiration of this Agreement.
g. ATTORNEYS FEES. If either party employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing
party shall be entitled to recover its reasonable attorneys' fees,
costs and other expenses.
h. CONFIDENTIALITY. The terms and conditions of this Agreement are
confidential. Neither party shall disclose such terms and conditions,
nor the substance of any discussions that led to them, to any Third
Party or other than an Affiliate or agent, or financial or legal
advisors who have a need to know such information and who have been
instructed that all such information is to be handled in strict
confidence.
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 7 of 10
9
The undersigned Company represents and warrants that it will be providing
Commercial Services as defined above and therefore qualifies as a Commercial
Service Provider, and agrees to the terms and conditions of this Agreement.
This Agreement does not constitute an offer by Microsoft and is not legally
binding until executed by each party. All fields must be completed by Company
in order for Microsoft to accept and execute this Agreement.
- -------------------------------------------------------------------------------
Name of Company: Name of Microsoft:
Futurelink Corporation Microsoft Corporation
- ----------------------------------- ----------------------------------
By: /s/ DAVID BOLINK By: /s/ RICHARD KERBS
-------------------------------- -------------------------------
(signature) (signature)
Name: David Bolink Name: Richard Kerbs
------------------------------ -----------------------------
(printed) (printed)
Title: Manager-Business Development Title: Group Manager
----------------------------- ----------------------------
(printed) (printed)
Date: May 20, 1999 Date: May 21, 1999
-------------- --------------
- -------------------------------------------------------------------------------
This Agreement and attached Microsoft Corporation Telephone Number (area code-phone number):
documents should be sent to One Microsoft Way (425) 882-8080
the following address for Redmond, WA 98052-6399
processing and approval: Attention: Facsimile Number (area code-phone number):
Special Agreements, Dept. 551 (425) 936-7329
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 8 of 10
10
As provided in Section 9.b above, notices required or permitted under this
Agreement should be addressed to the contact and locations outlined below. If
the information below changes during the term of the Direct Commercial Service
License Agreement, each party will notify the other party in writing on
company letterhead:
COMPANY INFORMATION MICROSOFT INFORMATION
- --------------------------------------------------------------------------------------
Commercial Service Provider Name
Futurelink Distribution Corporation MICROSOFT CORPORATION
- ---------------------------------------------------------------------------------------
Street Address and/or post office box Street Address and/or post office box
#300, 250 - 6th Ave S.W. ONE MICROSOFT WAY
- ---------------------------------------------------------------------------------------
City and State/Province City and State/Province
Calgary, Alberta REDMOND, WA
- ---------------------------------------------------------------------------------------
Country and Postal Code Postal Code
Canada T2P 3H7 98052-6399
- ---------------------------------------------------------------------------------------
Contact Name and title Attention
David Bolink - Manager Business Div. SPECIAL AGREEMENTS, DEPT 551
- ---------------------------------------------------------------------------------------
Phone Number Phone Number
(403) 509-5006 (425) 882-8080
- ---------------------------------------------------------------------------------------
Fax Number Fax Number
(403) 216-6050 (425) 936-7329
- ---------------------------------------------------------------------------------------
E-Mail Address
dbolink@futurelink.net
- ---------------------------------------------------------------------------------------
All NOTICES should have Copy To:
Microsoft Corporation
Law and Corporate Affairs
One Microsoft Way
Redmond, Washington USA 98052
Attention: U.S. Legal
- ---------------------------------------------------------------------------------------
And to:
- ---------------------------------------------------------------------------------------
Microsoft Account Manager Name
Mike Vanderlee
- ---------------------------------------------------------------------------------------
Office Location
Mississauga, Ont.
- ---------------------------------------------------------------------------------------
E-mail Address (if applicable)
mikevan@microsoft.com)
- ---------------------------------------------------------------------------------------
COMPANY INFORMATION REGARDING TECHNICAL SUPPORT (CHECK ONE OR MORE BOXES):
- --------------------------------------------------
[x] Company intends to sign a Microsoft Consulting
Services Agreement with Microsoft
- --------------------------------------------------
[ ] Company intends to sign a Premier Support
Agreement with Microsoft, or equivalent
offering from Microsoft
- --------------------------------------------------
[ ] Company intends to sign a service/support
agreement with a Microsoft Solution Provider
or Authorized Support Center
- --------------------------------------------------
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 9 of 10
11
DIRECT COMMERCIAL SERVICE LICENSE ORDER
- -------------------------------------------------------------------------------
Company Name:
--------------------------
Agreement Number:
--------------------------
Report for the Month Ending:
---------------------------
- -------------------------------------------------------------------------------
Microsoft Usage Third Party Third Party Third Party
Line Part Number Product Country Quantity Unit Price Extended Third Party Agreement Agreement Agreement
Description Price Name/Address Illegible Start Date End Date
- -----------------------------------------------------------------------------------------------------------------------------------
1
- -----------------------------------------------------------------------------------------------------------------------------------
2
- -----------------------------------------------------------------------------------------------------------------------------------
3
- -----------------------------------------------------------------------------------------------------------------------------------
4
- -----------------------------------------------------------------------------------------------------------------------------------
6
- -----------------------------------------------------------------------------------------------------------------------------------
9
- -----------------------------------------------------------------------------------------------------------------------------------
10
- -----------------------------------------------------------------------------------------------------------------------------------
11
- -----------------------------------------------------------------------------------------------------------------------------------
12
- -----------------------------------------------------------------------------------------------------------------------------------
13
- -----------------------------------------------------------------------------------------------------------------------------------
The undersigned hereby certifies that to the best of his/her knowledge that this
Direct Commercial Service License Order for the Direct Commercial Service
License Agreement between Microsoft and Company is true and accurate.
Signature This report should be sent to one of the following:
- ----------------------------- Address:
Printed Name Microsoft Corporation
- ----------------------------- Attention: Special Agreement Reporting - Dept. 551
Title One Microsoft Way
- ----------------------------- Redmond, WA 98052-6399
Date
- ----------------------------- Fax #: (425) 936-7329
Telephone Number
- ----------------------------- E-mail: spagrep@microsoft.com
Email address
- ----------------------------
Direct Commercial Service License Agreement
(Version 1.0 - 4/23/99) Page 10 of 10
12
MICROSOFT(R) DIRECT COMMERCIAL SERVICE
LICENSING PRODUCT LIST
This Direct Commercial Service Licensing Product List is a supporting document
for the Direct Commercial Service License Agreement ("Agreement"). It outlines
additional terms and conditions for the available products which are not
addressed in the Agreement or the applicable Commercial Use License Agreements
("CULA(s)") for each product. Specific terms not defined in this document are
defined in either the CULA(s) or the Agreement.
MICROSOFT(R) GENERAL SERVER LICENSE CONDITIONS
1. LICENSE ORDER REQUIREMENTS - The number of access licenses acquired by a
Commercial Service Provider ("CSP") for access rights provided to a
particular Third Party customer who receives services using Microsoft
software cannot decrease with respect to such third Party customer for the
term of that Third Party customer's contract with the CSP. The CSP will be
required to pay ongoing fees for highest number of any access rights provided
to a particular Third Party customer. This means the number of Commercial
Service Access Licenses ("CSAL(s)") or Commercial Service Internet Connectors
cannot decrease once such licenses or access rights are provided to a Third
Party customer. For example, a Third Party customer with 1,000 employees
signs up with a CSP to provide Exchange e-mail services. In the first month
of service, the Third Party customer sets up a mailbox for each employee. The
CSP will be required to place a monthly order to Microsoft for at least 1,000
Exchange CSAL(s) for the duration of the contract with the Third Party
customer. The order number may not decrease with respect to this Third Party
customer.
2. "PER SERVER" MODE REQUIREMENT - For any servers which can be licensed in "per
server" mode, the CSP must place orders for Commercial Service Access
Licenses based on the server limit which is set on the server, rather than
the actual number of users during the month. The server limit may be
increased at any time, but may not be lowered to reduce the required number
of licenses owed to Microsoft.
AVAILABLE SERVER LICENSES:
MICROSOFT(R) BACKOFFICE(R)
MICROSOFT(R) EXCHANGE
PRODUCT CONDITION NOTES
1. "UPGRADING A MICROSOFT EXCHANGE SERVER WITHIN A CSP'S "EXCHANGE ORGANIZATION"
- Once a single Microsoft Exchange Server within a CSP's "Exchange
organization" is upgraded, resulting in a Microsoft Exchange Enterprise
environment, every other Microsoft Exchange Server within the CSP's "Exchange
organization" must be upgraded. An "Exchange organization" is defined as the
group of all Microsoft Exchange Servers providing Commercial Services.
MICROSOFT(R) PROXY SERVER
MICROSOFT(R) SNA SERVER FOR WINDOWS NT(R)
MICROSOFT(R) SQL SERVER(TM)
PRODUCT CONDITION NOTES
1. SQL SERVER 7.0 COMMERCIAL SERVICE INTERNET CONNECTOR ("CSIC") USAGE
RESTRICTIONS - SQL Server 7.0 CSIC licenses provide unlimited usage for the
Internet only. To use a SQL Server 7.0 CSIC with SQL Server 7.0 on the
Internet, a CSP must acquire a SQL Server 7.0 CSIC license for each Third
Party customer receiving the services of a server that is running SQL Server
7.0 or SQL Server 7.0, Enterprise Edition. SQL Server Commercial Service
Access Licenses must be acquired when the SQL Server 7.0 CSIC is utilized for
Intranet access (whether using a browser or not).
MICROSOFT(R) SYSTEMS MANAGEMENT SERVER
MICROSOFT(R) WINDOWS NT(R) SERVER
Direct Commercial Service Product List - May 1999 Page 1 of 1