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Exhibit 10.2(b)
AMENDMENT NO. 2 TO THE
MICROSOFT CORPORATION
LARGE ACCOUNT RESELLER
AGREEMENT
This Amendment No. 2 ("Amendment"), entered into as of this 1st day of July,
2001, amends that certain Microsoft Corporation Large Account Reseller Agreement
("Agreement") between MSLI, G.P. ("MICROSOFT") having its principal place of
business at 6100 Neil Road, Suite 210, Reno, NV 89511-1137 and SOFTWARE
SPECTRUM, INC. ("COMPANY") having its principal place of business at 2140
MERRITT DRIVE, GARLAND, TX 75041. The Agreement is hereby amended as follows:
1. SECTION 4.1, TERM, IS REPLACED IN ITS ENTIRETY WITH THE FOLLOWING:
"4.1 TERM
This Agreement shall take effect on the Effective Date and shall continue until
September 30, 2001."
2. SECTION 5.7, COMPANY'S REPORTING AND/OR ORDERING AND PAYMENT TO
MICROSOFT, SUBSECTION (a) MICROSOFT SELECT CONSUMPTION REPORTING,IS
REPLACED IN ITS ENTIRETY WITH THE FOLLOWING:
"(a) MICROSOFT SELECT CONSUMPTION REPORTING
Except for Enterprise Agreements, for each COMPANY Enrollment Agreement, COMPANY
shall deliver to MICROSOFT via EDI or any other electronic format specified by
MICROSOFT each Wednesday a purchase order for License Confirmations ordered by
the Volume Licensing Customer in the immediately previous calendar week. For
each Enterprise Agreement, COMPANY shall deliver to MICROSOFT via EDI or any
other electronic format specified by MICROSOFT, (i) a purchase order for the
Enterprise Package upon execution of such agreement, and (ii) a purchase order
for each additional desktop license ordered or acquired from COMPANY at the
times specified in such agreement. Following receipt of such purchase order,
MICROSOFT shall invoice COMPANY and COMPANY shall be obligated to pay MICROSOFT
according to the Select Software Price List, along with any applicable quarterly
Upgrade Advantage fees. If the Volume Licensing Customer elects to pre-pay any
or all of its Upgrade Advantage commitment, COMPANY shall immediately report
such pre-payment to MICROSOFT, MICROSOFT shall invoice COMPANY immediately
following receipt of such report, and COMPANY shall be obligated to pay
MICROSOFT pursuant to the terms of this Section 5.7."
3. SECTION 5.7, COMPANY'S REPORTING AND/OR ORDERING AND PAYMENT TO
MICROSOFT, SUBSECTION (b) PAYMENT TERMS, FIRST PARAGRAPH, IS REPLACED
IN ITS ENTIRETY WITH THE FOLLOWING:
"(b) PAYMENT TERMS
All amounts are due and owing within thirty (30) calendar days of date of
MICROSOFT's invoice, provided, however, that should the due date of any invoice
be prior to the last day of MICROSOFT's fiscal month, such invoices shall be due
on the last day of such fiscal month. 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, which
ever is less. COMPANY shall be obligated to pay MICROSOFT any and all amounts
due regardless of whether COMPANY has received payment from the Volume Licensing
Customer. Failure by COMPANY to meet payment terms may result in a hold by
MICROSOFT of all pending COMPANY orders. COMPANY shall use its best efforts to
collect any and all amounts due from any Volume Licensing Customer.
Notwithstanding the foregoing, if any Enterprise Customer defaults on its
payment obligation to COMPANY for more than ninety (90) calendar days, COMPANY
will provide MICROSOFT with written notice identifying the Enterprise Customer
and the amount of the delinquency. COMPANY shall deliver such notice to
MICROSOFT at the address set forth in Section 19 below. Provided that the
Enterprise Customer is unable or unwilling to pay the amounts due, then COMPANY
shall be released from any payment obligation arising from the delinquent
Enterprise Customer's account, provided that COMPANY provide proof of its best
efforts to collect any outstanding amounts and assigns to MICROSOFT any and all
right, title and interest to the delinquent Enterprise Customer's outstanding
payments."
Microsoft Confidential- Disclosure Prohibited
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4. SECTION 7.4, PRODUCT WARRANTY; LIMITATION OF LIABILITY IS RENAMED
"PRODUCT WARRANTY", AND SUBSECTIONS (b) AND (c) ARE MOVED FROM SECTION
7.4 TO NEW SECTIONS 7.5 AND 7.6, RESPECTIVELY.
5. SECTION 7.4, PRODUCT WARRANTY; LIMITATION OF LIABILITY, SUBSECTION (b),
IS RENUMBERED AND RENAMED "7.5 LIMITATION OF LIABILITY" AND REPLACED IN
ITS ENTIRETY WITH THE FOLLOWING:
"7.5 LIMITATION OF LIABILITY
MICROSOFT SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE)
ARISING OUT OF THIS AGREEMENT OR ANY ADDENDA OR AMENDMENT HERETO OR ARISING OUT
OF THE USE OR INABILITY TO USE ANY SELECT SOFTWARE PRODUCT EVEN IF MICROSOFT'
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES."
6. SECTION 7.4, PRODUCT WARRANTY; LIMITATION OF LIABILITY, SUBSECTION (c),
IS RENUMBERED AND RENAMED "7.6 LIMITATION ON REMEDY" AND REPLACED IN
ITS ENTIRETY WITH THE FOLLOWING:
"7.6 LIMITATION ON REMEDY
IN ANY CASE, THE LIABILITY OF MICROSOFT (i) UNDER ANY PROVISION OF THIS
AGREEMENT; (ii) FOR ANY DAMAGES CAUSED BY A PROGRAM DEFECT OR FAILURE IN ANY
SELECT SOFTWARE PRODUCT OR (iii) ARISING FROM A COURT OF PROPER JURISDICTION
HOLDING ANY OF THE ABOVE WARRANTIES OR DISCLAIMERS OF WARRANTIES INADEQUATE OR
INVALID SHALL BE LIMITED TO 100% OF THE AMOUNT ACTUALLY PAID BY COMPANY TO
MICROSOFT DURING THE PERIOD THAT IS ONE YEAR PRIOR TO THE DATE OF THE CAUSE OF
ACTION BETWEEN THE LITIGANTS FOR THE SELECT SOFTWARE PRODUCT THAT IS THE BASIS
FOR THE CAUSE OF ACTION, MINUS ANY AMOUNTS PAID BY MICROSOFT DURING THE SAME
PERIOD FOR ANY PRIOR LIABILITY ARISING FROM THAT SELECT SOFTWARE PRODUCT.
MICROSOFT's LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL OF MICROSOFT's
EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE
EXISTENCE OF CLAIMS OR SUITS AGAINST MORE THAN ONE SELECT SOFTWARE PRODUCT
DISTRIBUTED UNDER THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMIT. COMPANY
RELEASES MICROSOFT FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS
OF THE LIMITATION."
7. SECTION 7.5, SEMESTER PROGRAMS, IS RENUMBERED "7.7" AND MODIFIED TO
INCLUDE THE FOLLOWING AS PARAGRAPH TWO:
"In conjunction with COMPANY's participation in any semester programs, MICROSOFT
will assign COMPANY a total sales goal for MICROSOFT Product. COMPANY must
achieve no less than eighty percent (80%) of the total sales goal. Failure by
COMPANY to achieve 80% may result in the termination of COMPANY's authorization
as a Large Account Reseller."
IN WITNESS WHEREOF, the parties have signed this Amendment on the date indicated
below. This Amendment is hereby made part of the Agreement. All terms and
conditions of the Agreement not modified herein shall remain in full force and
effect. This Amendment is not binding until executed by MICROSOFT.
MSLI, GP ("MICROSOFT") SOFTWARE SPECTRUM, INC. ("COMPANY")
By: By: /s/ Robert D. Graham
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Robert D. Graham V.P.
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Name (please print) Title Name (please print) Title
August 7, 2001
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Date Date
Amendment No.2 to The Page 2
Microsoft Large Account Reseller Agreement