BY SCROLLING TO THE BOTTOM OF THIS AGREEMENT AND CLICKING THE "I ACCEPT"
BUTTON BELOW, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, THE
PROGRAM GUIDE ON THE PROGRAM WEB SITE, AND THE PROGRAM WEB SITE TERMS OF
USE AND PRIVACY STATEMENT, ALL OF WHICH ARE INCORPORATED INTO AND FORM PART
OF THIS AGREEMENT. YOU ALSO REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL
OF THE PROVISIONS OF THIS AGREEMENT. YOU MUST ACCEPT THIS AGREEMENT BEFORE
YOU CAN PARTICIPATE IN THE MICROSOFT PARTNER PROGRAM.
Microsoft Partner Program Agreement
Microsoft Corporation (or that Microsoft affiliate specifically identified
in section 12 below) and you (as identified in the signature block below)
agree to the following terms for your participation in the Microsoft
Partner Program ("MSPP" or "program").
1. Scope. MSPP centralizes and incorporates many of Microsoft's technology
partner programs around the world. This program is designed to help
partners deliver high quality technology and solutions based on Microsoft
technologies. Taking part in any Microsoft program is always voluntary for
both you and us. Nothing in this agreement restricts you from supporting,
promoting, distributing or using non-Microsoft technology. You confirm that
you are acquiring services and program materials for business purposes
only. You are responsible for a) communicating the terms of this agreement
to your employees and contractors and b) ensuring their compliance with the
terms of this agreement and any company policies and procedures you might
have surrounding use of the program and the program Web site. This
agreement does not amend or alter any other agreement between you and us.
2. Definitions. In this agreement, "you" means the company that has entered
into this agreement with us, and "we," "us" or "Microsoft" means the
Microsoft company that accepts this agreement. In addition, the following
definitions apply:
2.1 "affiliate" means any legal entity that is owned by you or us,
that owns you or us, or that is under common ownership with you or us.
Ownership means control of more than a 50% interest.
2.2 "branch office" means your affiliates (authorized by you and us)
who have enrolled in MSPP and associated with you for the purpose of
pooling partner points or sharing benefits. Branch offices are described
more fully in the program guide.
2.3 "Microsoft materials" means any Microsoft technology (including
software), services, information, materials and other benefits provided to
you through MSPP.
2.4 "program levels" means the level of your participation in MSPP.
There are three program levels. The registered member level requires
registration only. The gold certified partner (highest level) and the
certified partner level have additional requirements. Program levels and
requirements are described more fully in the program guide.
2.5 "program Web site" means the Web site you are currently accessing
to review and accept this agreement, which is located on
http://www.microsoft.com. The MSPP Web site provides additional tools and
information about MSPP, including the program guide. The program guide
includes, but is not limited to additional guidance and instruction about
MSPP program levels, partner points, program benefits, and any operational
requirements.
2.6 "solutions competency" means special recognition given to partners for
specific areas of expertise in the form of a solutions competency. The various
solutions competencies and associated requirements are outlined in the program
guide.
3. Program.
3.1 Enrollment. After you accept this agreement, we will advise you of our
acceptance or non-acceptance. We will also determine and provide you with notice
of the program level for which you qualify based on the number of partner points
you have earned.
3.2 Transition into the program. During the first year this program is
offered to partners, we may accept your agreement and place you in a program
level (and sometimes a solutions competency) for which you do not have the
necessary number of partner points (or qualifications). If we do, you have met
an alternate set of eligibility criteria (as outlined in the program guide). The
alternate criteria are designed to transition you from an old Microsoft partner
program into MSPP. As such, you are not obligated to obtain the standard number
of partner points (or qualifications) during your first year of participation in
the program. Thereafter, you will be required to obtain the standard number of
partner points (or qualifications) to maintain your program level (or solutions
competency).
3.3 Partner points. Partner points accumulate in many different ways. The
program guide provides detailed information regarding how to accumulate partner
points. In general, you can qualify for a program level by accumulating the
required number of partner points. However, partner points do not determine
solutions competencies. The program guide will describe in detail how to obtain
solutions competencies.
3.4 Benefits.
a. You will receive certain benefits under the program as outlined in the
program guide. Benefits may vary by program level, solutions
competencies, and from country to country. Generally, benefits may
include sales, marketing, training, technology, services and/or
technology development programs. However, in some locations around the
world (including India) the welcome kit is the benefit for which the
welcome kit price is charged and may be supplied to you by a Microsoft
designated distributor.
b. Program benefits may have additional terms, conditions, licenses and
supplemental licenses associated with them. Before using any program
benefit (including Microsoft technology), you agree to obtain and read
a copy of the additional terms. You agree that your use of program
benefits with additional terms implies your acceptance of the
additional terms and your use will be in accordance with the
additional terms of the benefit, the program guide and this agreement.
If you do not agree, you are not authorized to use the program
benefit(s).
c. Your affiliates may participate in MSPP as your branch office for the
purpose of pooling partner points or sharing benefits.
3.5 Services. Delivery of services (as described in the program guide)
depends on your full and timely cooperation, as well as the accuracy and
completeness of any information you provide. Services may include consulting or
support services that are provided to you according to the terms and conditions
of this agreement, unless a separate written agreement governing the provision
of services applies. If a separate written agreement applies, the separate
agreement will control.
3.6 Supportability. We can add support for new software or discontinue
support for existing software. A list of our currently supported software can be
found at www.support.microsoft.com. There may be cases where your implementation
of our software cannot be effectively supported. As part of providing the
support services, we will notify you if we reach that conclusion. If you do not
modify the implementation of the software to make it effectively supportable
within 30 days after the notice, we will not be obligated to provide additional
support services for that implementation.
3.7 Program administration. We will administer MSPP through a program Web
site. This site will include a program guide, tools for you to track your
program membership and tools to allow you to take advantage of program benefits.
Microsoft may contact you and send notice by telephone, fax and physical or
electronic mail for the primary purpose of administering this program.
3.8 Program changes.
a. We have the right to change or discontinue the program or any aspect
of it. We will give you 30 days email or written notice of any
substantive program discontinuation or change, except that we will
give you 60 days email or written notice if the overall program is
discontinued. If you do not agree with the discontinuation or change
you have the right to immediately terminate this agreement under
section 8.3.
b. For all other changes, you are responsible for checking the program
Web site regularly. When the program Web site changes, you agree to be
bound, but only prospectively and not retroactively, as of the date
the changes are posted.
3.9 Payment.
a. There is no fee for registering as a Registered Member. If you qualify
as a gold certified partner or a certified partner, you agree to pay us
the annual program fee, and other fees for benefits in which you choose
to participate.
b. In some locations around the world (including India), any reference to
the program fee is the welcome kit price and must be paid to a
Microsoft designated distributor who is responsible for sending you an
invoice for the welcome kit price. This price is an estimated price
and is subject to variations, such as foreign exchange rates. When you
send your payment with your invoice, you must also include a signed,
hard-copy of this agreement.
3.10 Advertising and publicity. We will request your permission if we plan
to use your name or corporate logos or identity in advertisements or promotions
relating to the program. You agree not to unreasonably withhold or delay your
permission. If we do not get your permission or rejection within 30 days of your
receipt of our request, it is understood and acknowledged that your lack of
response will signify that you have granted your permission.
4. Intellectual Property.
4.1 Limited trademark license. If you are a gold certified partner or a
certified partner, we grant to you a non-exclusive, non-transferable,
non-assignable, limited, royalty-free license to use any Microsoft trademarks,
logos, symbols, and names that appear in the Microsoft materials provided to you
on the program Web site ("Microsoft marks"). You acknowledge and agree that:
a. Microsoft Corporation is the sole owner of the Microsoft marks and the
sole beneficiary of the goodwill associated with your use of the
Microsoft marks.
b. You will not acquire any right, title or interest in the Microsoft
marks because of your use of the Microsoft marks.
c. You may not register, adopt or use any name, trademark, domain name or
other designation that includes all or part of any Microsoft trademark
or service mark, or any term that is confusingly similar to a
Microsoft trademark or service mark, or any term that is confusingly
similar to a translation or transliteration of a Microsoft trademark
or service mark.
d. You may use the Microsoft marks only in connection with Microsoft
materials:
o In the form provided by Microsoft
o In accordance with applicable guidelines included in the program
guide
o For program advertising and promotion activities only, and
o Only in accordance with the terms of this agreement.
e. You may not alter, animate or distort the Microsoft marks nor combine
them with any other symbols, words, images or design elements.
f. You may not use any of the Microsoft marks or Microsoft materials in
connection with the transmission or distribution of unsolicited
commercial email or in any manner that would violate local law or
custom or conflict with our policies published on
http://www.microsoft.com or through this program.
g. You must maintain the quality of the solutions and services you offer
in relation to the Microsoft marks and the Microsoft materials at a
level commensurate with the quality of services you offered before the
date of this agreement. The quality of your solutions and services
must also meet or exceed standards of quality and performance
generally accepted in the industry.
h. You agree to correct any improper use of the Microsoft marks or
deficiencies in the quality of your services within a reasonable time
upon receipt of notice from us.
4.2 Referential use of trademarks. All program partners (including
registered members) may use our corporate name, technology names and trademarks
in plain text (but not logos, trade dress, designs or word marks in stylized
form) to accurately identify and refer to Microsoft and its technology and
services, provided that such use is not likely to cause confusion about the
source of your solutions and services or your relationship with Microsoft.
4.3 Notices. You must not remove any copyright, trademark or patent notices
contained in or on any Microsoft materials. You must include our copyright
notice on the labels for any tangible media containing licensed Microsoft
technology and on any documentation for licensed Microsoft technology, including
on-line documentation. You must use the appropriate trademark, licensed
Microsoft technology descriptor and trademark symbol (either "(TM)" or "(R)"),
and clearly indicate our (or our suppliers') ownership of trademark(s) whenever
a licensed Microsoft technology name is first mentioned in any advertisement,
brochure or in any other manner in connection with any licensed Microsoft
technology. Our trademark guidelines are located at:
www.microsoft.com/trademarks.
4.4 No technology transfer arrangement. This agreement does not create a
"technology transfer" agreement, as defined by applicable law because (a) the
technology (including any software) made available under this agreement is not
an integrated part of a technology chain for production or management purposes
and (b) the technology (including any software) will have its own technology
license. You will not hold yourself out as our technology recipient and will not
attempt to identify us as a technology provider under this agreement.
4.5 Software or services benefits.
a. Your right to use any software or services deliverables provided to
you as a result of MSPP is governed by the license agreement
applicable to the software program involved or, if a license agreement
is not provided for a specific software program, any other use terms
provided to you.
b. You must not engage or participate with any third party in the
unauthorized manufacture, duplication, delivery, transfer or use of
counterfeit, pirated, unlicensed or illegal software and you must not
otherwise infringe any of our other intellectual property rights. You
must reasonably cooperate with our affiliates and us in the
investigation of counterfeit, pirated, unlicensed or illegal software.
You must report to us, as soon as possible after you notice it, any
suspected counterfeiting, piracy or other copyright infringement in
computer programs, manuals, marketing materials or other copyrighted
materials owned by us and/or our licensors.
c. The benefits including software or services that you receive as a
benefit of MSPP are not intended for distribution to your customers.
Your customers must acquire a sufficient number of Microsoft licenses
to match (1) the quantities of the licensed software you may provide
to your customers under a separate agreement, and (2) the maximum
number of users and/or devices that may access or use the licensed
software under the customer's license agreement with you or us. You
will promptly inform us of any known or suspected failure by a
customer to possess sufficient numbers of Microsoft licenses. You will
promptly inform us of any known or suspected violations by a customer
of any Microsoft license agreement.
4.6 Reservation of rights. We reserve all right not expressly granted in
section 4.
5. Verifying compliance. During the term and for three years after this
agreement ends, you must keep all usual and proper books and records (according
to the set of accounting rules, regulations, authoritative pronouncements,
principles and practices accepted in your jurisdiction) relating to your
performance of this agreement, including without limitation, documents related
to acquisition, delivery and destruction of software. During the same period, at
our cost, and upon 48 hours written notice to you (except audits related to
counterfeit software), our audit team may conduct audits of your applicable
books, records, operations, processes and facilities during any selected period
to verify your compliance with the terms of this agreement as described further
in any applicable operations manual. You will promptly correct any errors and
omissions disclosed by the audits.
Any audit will be conducted during your normal business hours and in a manner
that does not interfere unreasonably with your normal business activities. You
will provide us with access to all applicable books, records, operations,
processes and facilities that we may need to review to complete a proper and
thorough audit. If an audit is conducted with notice, you will have all
applicable books, records and operations available to us at the beginning of the
audit. You will pay us the costs for the audit if an audit uncovers a terminable
breach of this agreement as defined in section 8.3 or a discrepancy of 2% or
more in your use of license benefits during the applicable audit period. If the
audit team makes any commercially reasonable recommendations to you on record
keeping, you will implement the recommendations within a mutually agreeable
timeframe.
6. Program Limitations. We warrant that we will use reasonable care and skill
to administer the program. However, your effort and resulting performance are
completely under your control. We do not guarantee your satisfaction with the
program or your results. Except for loss and damage which cannot be limited or
excluded under applicable law, (a) the Microsoft materials we provide you are
"AS IS," and are provided without any other warranties of any kind and (b) WE
DISCLAIM ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND SUPPLIERS ALL
OTHER WARRANTIES OR CONDITIONS OF ANY KIND WHETHER EXPRESS, IMPLIED OR
STATUTORY. THIS LIMITATION INCLUDES, BUT IS NOT LIMITED TO TITLE,
NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY and FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, SYSTEM INTEGRATION, TIMELINESS, OR
ANY IMPLIED WARRANTY OR CONDITIONS ARISING FROM COURSE OF DEALING OR USAGE OF
TRADE. You must defend, indemnify and hold us harmless from any third-party
claims (including without limitation, reasonable attorney's fees) arising from
your acts or omissions (including those of your agents) relating to performance
of this agreement. This limited warranty described in the first sentence of this
section gives specific legal rights. You and we may have other rights (to the
extent not excluded in this agreement) which vary by jurisdiction.
7. Disclaimers and Limitations of Liability.
7.1 Disclaimers and limitations of liability. IN THE ABSENCE OF FRAUD OR
GROSS NEGLIGENCE, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOSS
(WHETHER DIRECT OR INDIRECT) OF PROFITS, DATA, BUSINESS OR ANTICIPATED SAVINGS.
IN ADDITION, THERE IS NO LIABILITY FOR ANY OTHER INDIRECT, CONSEQUENTIAL,
PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT (WHETHER FOR SUPPORT SERVICES, TERMINATION OR OTHERWISE). THE ONLY
REMEDY THAT THE PARTIES MAY HAVE FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS
AGREEMENT (WHETHER FOR SUPPORT SERVICES, TERMINATION OR OTHERWISE) IS TO
TERMINATE THIS AGREEMENT. THESE TERMS APPLY REGARDLESS OF THE FORM OR CAUSE OF
ACTION OR THE ALLEGED BASIS OF THE CLAIM (INCLUDING NEGLIGENCE). THIS SECTION
DOES NOT APPLY IN THE CASE OF FRAUD OR GROSS NEGLIGENCE OR BREACHES BY ONE PARTY
OF THE OTHER PARTY'S INTELLECTUAL PROPERTY, INDEMNIFICATION or CONFIDENTIALITY
PROVISIONS OF THIS AGREEMENT. THIS SECTION IS ENFORCEABLE TO THE MAXIMUM EXTENT
PERMITTED BY LAW. Yours and our total cumulative liability for loss or damage of
any kind (including loss or damage caused by negligence) to the extent not
excluded by this agreement is limited to 100% of the amount actually paid, and
any amounts owed by you to us, during the then-current term of this agreement.
Such liability is reduced to the extent that the non-liable party or its agents
caused or contributed to the loss or damage.
7.2 Business purposes. You confirm that you are entering this agreement,
and acquiring the services and program materials under it, for business purposes
only. You agree that the provisions of any consumer protection legislation for
the relevant jurisdiction will not apply to the extent that contracting out of
such legislation is permitted by law.
7.3 Consumer rights. Nothing in this agreement is intended to limit the
rights of a consumer, as may be defined by applicable law. To the extent
necessary, this agreement is considered to be modified to reflect this
intention. Consumers may have the benefit of certain rights or remedies which
may not be excluded under applicable law. If so, then to the maximum extent
permitted by law, our liability is limited, at our option either to (a)
re-supply the services or (b) the cost to re-supply the services.
8. Term and Termination
8.1 Term. This agreement will take effect on the date we accept this
agreement. Unless terminated earlier, it will continue until the one-year
anniversary of that date, at which date this agreement will automatically end.
You agree that you have no expectation that this agreement will be renewed or
that we will enter into a new agreement with you. If you are upgraded from
Registered Member status during the program year, your effective date will reset
and change to the date the upgrade took effect. An upgrade from certified
partner to gold certified partner will not change your effective date.
8.2 Termination without cause. Either party may terminate this agreement
(and we may also terminate the program) at any time, without cause, upon 60
calendar days' notice. If the agreement is terminated as described in this
section, neither party will be responsible to the other for any costs or damages
that are a direct result of the termination. However, we will refund the
pro-rata unused amount of the annual program fee you paid if you are a gold
certified partner or certified partner.
8.3 Termination for cause. If you or we breach any provision of this
agreement, and the cause for termination is curable, the terminating party will
give 30 calendar days email or written notice and opportunity to cure. If the
cause for termination is the type that is not curable during that time,
termination will take effect immediately upon notice from the party who is not
in breach. For example, if you or we violate the confidentiality requirements in
section 11.4 it is a breach that cannot be cured. We retain our other rights and
remedies.
8.4 Statutory form. Without any liability to you, if we are required to use
a statutory form, we reserve the right to either terminate or vary this
agreement without its use.
8.5 Effect of termination. When this agreement is no longer in effect, you
must immediately stop using any rights and benefits granted by this agreement
and the program. You must also destroy all Microsoft materials. Within 10 days
of termination and at our sole discretion, you will either (i) return all
documents and materials (including any and all copies) containing customer
information, you received as a result of this agreement together with all other
Microsoft materials and property in your possession or under your control or
(ii) destroy all such specified documents and Microsoft materials (including any
and all copies) and provide us with a certificate of destruction signed by an
officer of your company. Termination of this agreement will not, by itself,
result in the termination of any unresolved request for technical support made
before termination. The terms of this agreement will continue in effect solely
for the purpose of such unresolved requests until the requests are resolved or
are otherwise closed.
8.6 Waiver of rights and obligations. To the extent necessary to implement
the termination of this agreement, each party waives any right or obligation
under any applicable law or regulation to request or obtain intervention of the
courts to terminate this agreement.
8.7 Survival. Sections 5, the disclaimers and indemnifications in section
6, 7, 8.5, 8.7, 10, 11, 12, and 13 will survive the expiration or termination of
this agreement.
9. Compliance with laws.
9.1 Export restrictions. You acknowledge that any software you receive as a
benefit of MSPP is subject to U.S. export laws and regulations. You must comply
with all domestic and international export laws and regulations that apply to
the licensed software you receive as a benefit of this program. Such laws
include restrictions on destinations, end-users and end use. For additional
information, see http://www.microsoft.com/exporting/.
9.2 Local Laws and Regulations. You and your affiliates must, at your own
expense comply with all applicable local laws and regulations necessary under
this agreement.
10. Taxes.
10.1 Taxation. The amounts to be paid to us under this agreement do not
include any foreign, U.S. federal, national, state, provincial, local, municipal
or other governmental taxes (including without limitation goods and services
taxes), stamp or documentary taxes, duties, levies, fees, excises or tariffs,
arising as a result of or in connection with the transactions contemplated under
or any supply made under this agreement. However, you must pay to us any
applicable value added, goods and services, sales or use taxes or like taxes
that are owed by you solely as a result of entering into this agreement and
which are permitted to be collected from you by us under applicable law. You may
provide to us a valid exemption certificate in which case we will not collect
the taxes covered by such certificate. We are not liable for any of your taxes
that you are legally obligated to pay which are incurred or arise in connection
with or related to the sale of goods and services under this agreement, and all
such taxes (including but not limited to net income or gross receipts taxes,
franchise taxes, and/or property taxes) shall be your financial responsibility.
Where such taxes are imposed on us by law, you must pay us an amount on account
of such taxes as invoiced by us to you. You agree to indemnify, defend and hold
us harmless from any taxes (including sales or use taxes paid by you to us) or
claims, causes of action, costs (including, without limitation, reasonable
attorneys' and legal fees) and any other liabilities of any nature whatsoever
related to such taxes.
If, in accordance with local laws and regulations or after a determination
by foreign tax authorities, any taxes are required to be withheld, on payments
made by you to us, you may deduct such taxes from the amount owed to us and pay
them to the appropriate taxing authority; provided, however, that you shall
promptly secure and deliver to us an official receipt for any such taxes
withheld or other documents necessary to enable us to claim a U.S. Foreign Tax
Credit. You will make certain that any taxes withheld are minimized to the
extent possible under applicable law.
10.2 Tax treatment. 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 or any other document
included in this agreement.
11. General.
11.1 Entire agreement. The terms and conditions of this agreement and the
program guide (and any terms applicable to specific benefits) on the Web site
form our entire agreement concerning MSPP and supersede any prior or
contemporaneous communications. Except as expressly provided herein, this
agreement can only be changed by an amendment agreed to by both parties, except
that we may change the program guide with respect to processes and guidelines
relating to program administration, policies, procedures, guidelines, benefits
and similar changes.
11.2 Notices. All notices and requests in connection with this agreement
must be sent as specified in other sections of this agreement to the named
contact person and the address you provide us. For notices and requests to us,
see the program Web site. Notices are considered delivered on the date shown on
the confirmation of delivery, such as the date of publication to the program Web
site.
11.3 Assignment. Either party may assign this agreement at any time to an
affiliated company; otherwise, this agreement may not be assigned, by agreement
or otherwise without the prior, written approval of the other party, which will
not be unreasonably withheld.
11.4 Confidentiality. The following terms and conditions apply to exchanges
of information that take place under this agreement.
a. "Confidential information" means nonpublic information that you, we,
or an affiliate designates as being confidential or which, under the
circumstances surrounding disclosure, or given the nature of the
disclosure, ought to be treated as confidential.
b. You and we must refrain from disclosing any confidential information
of the other for five years following the date of disclosure, except
that if the confidential information contains personal information
(such as customer contact information), there is no time limit
regarding non-disclosure. Neither party will be liable for disclosure
of information which the receiving party can prove (a) is already
known to the disclosing party without an obligation to maintain the
same as confidential; (b) becomes publicly known through no wrongful
act of the disclosing party; (c) is rightfully received from a third
party without breach of an obligation of confidentiality owed to the
other party; or (d) is independently developed by the disclosing
party.
c. However, confidential information may be disclosed in accordance with
a judicial or other governmental order, if the receiving party either:
(i) gives reasonable notice of the order to allow the other party a
reasonable opportunity to seek a protective order or otherwise prevent
or restrict its disclosure, or (ii) obtains written assurance from the
applicable judicial or governmental entity that it will protect the
confidential information to the maximum level allowed under applicable
law or regulation.
d. The term "residuals" means information in intangible form, which is
retained in memory by persons who have had access to the confidential
information, including ideas, concepts, know-how, or techniques
contained therein. You and we are free to use the residuals resulting
from access to or work with confidential information for any purpose,
however, the receiving party may not disclose the confidential
information except as expressly permitted pursuant to the terms of
this agreement. The receiving party will not 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. This sub-paragraph
does not grant a license to the receiving party under the disclosing
party's copyrights or patents.
e. One party may provide the other party with suggestions, comments or
voluntary feedback if it does not violate any other contractual or
legal obligations. This feedback may be used, disclosed, reproduced,
licensed, distributed and exploited by either party without obligation
or restriction of any kind. Unless the parties specifically agree in
writing, this feedback, even if designated as confidential, will not
create a confidentiality obligation.
f. We may use any technical information we derive from providing services
related to our technology for problem resolution, troubleshooting,
functionality enhancements and fixes, for our knowledge base. We agree
not to identify you or disclose any of your confidential information
in any item in the knowledge base.
g. You agree to keep in strict confidence any customer information given
to you by us under the terms of this agreement. You also agree to take
reasonable security measures to protect the customer information from
unauthorized use, access, disclosure, alteration or destruction.
Security measures will include access controls, encryption and any
other security means that are required to comply with applicable laws.
11.5 Relationship between you and us. Even though we may call you a
'partner', you are an independent contractor for all purposes regarding this
agreement and its provisions. At no time do you have the power to (i) bind
Microsoft, (ii) vary any terms, conditions warranties or covenants made by
Microsoft or (iii) create in favor of any person any rights that we have not
previously authorized in writing. Neither this agreement, nor any of its
provisions, will be construed as creating a partnership (as such term is used in
applicable partnership laws to designate a legal partnership entity), joint
venture, agency, or franchise relationship or any fiduciary duty between us.
11.6 Language. We offer this agreement in several languages. The language
version in which you accept this agreement will control. If you are in Canada,
it is our express wish that this agreement, and any associated program
documentation, be written and signed in English. C'est la volonte expresse des
parties que la presente convention ainsi que les documents qui s'y rattachent
soient rediges en anglais.
11.7 Severability. If a court holds any provision of this agreement to be
illegal, invalid or unenforceable, the remaining provisions will remain in full
force and effect and we will amend this agreement to give effect to the stricken
clause to the maximum extent possible.
11.8 No waiver of any breach of this agreement will be a waiver of any
other breach and no waiver will be effective unless made in writing and signed
by an authorized representative of the waiving party.
11.9 No representations. You acknowledge that Microsoft has not made any
representation to you about Microsoft materials on which you have relied in
deciding to acquire them or to enter into this agreement. You warrant that you
have relied on your own skill and judgment or that of your advisers in relation
to these matters. However, neither party limits or excludes liability for
fraudulent misrepresentations.
11.10 Government. This agreement is not for your use if you are a
government entity, except as may be expressly agreed in an amendment to this
agreement addressing unique government issues, for example, applicable law,
publicity, confidentiality/public records.
11.11 Order of precedence. With any inconsistency between this agreement
and the program guide, the agreement will prevail over the program guide. With
any inconsistency between this agreement and the additional or separate terms
referenced in section 3,4(b) and 3.5, the additional terms will prevail over
this agreement.
12. Microsoft Contracting Entity. The Microsoft contracting entity for this
agreement is determined by the country/region you are located in and as outlined
below:
The Microsoft entity for Japan is:
Microsoft Co., Ltd.
Odakyu Southern Tower
2-1, Yoyogi 2-chome, Shibuya-ku, Tokyo
151-8583 Japan
The Microsoft entity for the People's Republic of China is:
Microsoft (China) Company, Limited
6F Sigma Center
No. 49 Zhichun Road Haidian District
Beijing 100080, P.R.C.
The Microsoft entity for the following countries/regions is indicated
below: Anguilla, Antigua and Barbuda, Argentina, Aruba, Bahamas, Barbados,
Belize, Bermuda, Bolivia, Brazil, Canada, Cayman Islands, Chile, Colombia,
Costa Rica, Curacao, Dominica, Dominican Republic, Ecuador, El Salvador,
French Guiana, Grenada, Guam, Guatemala, Guyana, Haiti, Honduras, Jamaica,
Martinique, Mexico, Montserrat, Netherlands Antilles, Nicaragua, Panama,
Paraguay, Peru, Puerto Rico, Saint Kitts and Nevis, Saint Lucia, Saint
Pierre and Miquelon, Saint Vincent and The Grenadines, Suriname, Trinidad
and Tobago, Turks and Caicos Islands, United States, Uruguay, Venezuela,
Virgin Islands (British) and Virgin Islands (U.S.)
Microsoft Corporation
One Microsoft Way
Redmond, WA 98052
USA
The Microsoft entity for the following countries/regions is indicated
below: Afghanistan, Albania, Algeria, Andorra, Angola, Armenia, Austria,
Azerbaijan, Bahrain, Belarus, Belgium, Benin, Bosnia and Herzegovina,
Botswana, Bouvet Island, Bulgaria, Burkina Faso, Burundi, Cameroon, Central
African Republic, Chad, Comoros, Congo, Cote d'Ivoire, Croatia, Cyprus,
Czech Republic, Democratic Republic of Sao Tome and Principe, Denmark,
Djibouti, Egypt, Estonia, Ethiopia, Faeroe Islands, Finland, France, Gabon,
Gambia, Georgia, Germany, Ghana, Gibraltar, Greece, Greenland, Guadeloupe,
Guinea-Bissau, Hungary, Iceland, Ireland, Israel, Italy, Jordan,
Kazakhstan, Kenya, Kosovo, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lesotho,
Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar,
Malawi, Mali, Malta, Mauritania, Mauritius, Moldova, Monaco, Mongolia,
Morocco, Mozambique, Namibia, Netherlands, New Caledonia, Niger, Nigeria,
Norway, Oman, Pakistan, Poland, Portugal, Qatar, Republic of Cape Verde,
Republic of Equatorial Guinea, Republic of Guinea, Republic of Senegal,
Reunion, Romania, Russian Federation, Rwandese Republic, Saint Helena, San
Marino, Saudi Arabia, Seychelles, Sierra Leone, Slovakia, Slovenia,
Somalia, South Africa, Spain, Svalbard and Jan Mayen, Swaziland, Sweden,
Switzerland, Tajikistan, Tanzania, Togo, Tunisia, Turkey, Turkmenistan,
Uganda, Ukraine, United Arab Emirates, United Kingdom, Uzbekistan, Vatican
City State, Yemen, Zaire, Zambia and Zimbabwe
Microsoft Ireland Operations Limited
The Atrium
Block B
Carmenhall Road
Sandyford Industrial Estate
Dublin 18
IRELAND
The Microsoft entity for the following countries/regions is indicated
below: American Samoa, Australia and its external territories, Bangladesh,
Bhutan, Brunei Darussalam, Cambodia, Cook Islands, East Timor, Fiji, French
Polynesia, French Southern Territories, Hong Kong, India, Indonesia,
Kiribati, Lao Peoples Democratic Republic, Macao, Malaysia, Maldives,
Marshall Islands, Mayotte, Micronesia, Nauru, Nepal, New Zealand, Niue,
Northern Mariana Islands, Palau, Papua New Guinea, Philippines; Pitcairn,
Republic of Korea, Samoa, Singapore, Solomon Islands, Sri Lanka, Thailand,
Tokelau, Tonga, Tuvalu, Wallis and Futuna Islands, Vanuatu and Vietnam
Microsoft Regional Sales Corporation
A corporation organized under the laws of the State of Nevada,
USA with a branch in Singapore, having
its principal place of business at:
438B Alexandra Road, #04-09/12, Block B, Alexandra Technopark
Singapore, 119968
The Microsoft entity for Taiwan is:
Microsoft Taiwan Corporation
8F, No 7, Sungren Rd.
Shinyi Chiu, Taipei
Taiwan 110
13. Applicable law; attorney's fees. Applicable law, jurisdiction and venue for
this agreement are identified below. This choice of jurisdiction and venue does
not prevent either party from seeking injunctive relief with respect to a
violation of intellectual property rights, confidentiality obligations or
enforcement of recognition of any award or order in any appropriate
jurisdiction. If either party commences litigation in connection with this
agreement, the prevailing party will be entitled to recover its reasonable
attorneys' fees, costs and other expenses.
13.1 Generally. Except as provided in section 13.2 below, this agreement is
governed by the laws of the State of Washington. The parties consent to
exclusive jurisdiction and venue in the courts sitting in King County,
Washington. You waive all defenses of lack of personal jurisdiction and forum
non conveniens.
13.2 Other Terms. If your principal place of business is in one of the
countries or regions listed below, or if you are a government entity, the
corresponding provision applies, which supersedes section 13.1 to the extent
that it is inconsistent:
a. If your principal place of business is in Australia or its external
territories, India, Indonesia, Malaysia, New Zealand, Philippines,
Singapore, Thailand or Vietnam, the following applies:
This agreement is construed and controlled by the laws of Singapore.
If your principal place of business is in Australia or its external
territories, Malaysia, New Zealand or Singapore, you consent to the
non-exclusive jurisdiction of the Singapore courts.
If your principal place of business is in India, Indonesia,
Philippines, Thailand or Vietnam, any dispute arising out of or in
connection with this agreement, including any question regarding its
existence, validity or termination, must be referred to and finally
resolved by arbitration in Singapore in accordance with the
Arbitration Rules of the Singapore International Arbitration Centre
("SIAC"), which rules are deemed to be incorporated by reference into
this section. The Tribunal shall consist of one arbitrator to be
appointed by the Chairman of SIAC. The language of the arbitration
shall be English. The decision of the arbitrator shall be final,
binding and incontestable and may be used as a basis for judgment
thereon in India, Indonesia, Philippines, Thailand or Vietnam (as
appropriate), or elsewhere.
b. If your principal place of business is in Japan, the following
applies:
Our agreement shall be construed and controlled by the laws of Japan,
and you consent to exclusive original jurisdiction and venue in the
Tokyo District Court. In any action to enforce any right or remedy
under this agreement or to interpret any provision of this agreement,
the prevailing party shall be entitled to recover its reasonable
attorneys' fees, costs and other expenses.
c. If your principal place of business is in Afghanistan, Albania,
Algeria, Andorra, Angola, Armenia, Austria, Azerbaijan, Bahrain,
Belarus, Belgium, Benin, Bosnia and Herzegovina, Botswana, Bouvet
Island, Bulgaria, Burkina Faso, Burundi, Cameroon, Central African
Republic, Chad, Comoros, Congo, Cote d'Ivoire, Croatia, Cyprus, Czech
Republic, Democratic Republic of Sao Tome and Principe, Denmark,
Djibouti, Egypt, Estonia, Ethiopia, Faeroe Islands, Finland, France,
Gabon, Gambia, Georgia, Germany, Ghana, Gibraltar, Greece, Greenland,
Guadeloupe, Guinea-Bissau, Hungary, Iceland, Ireland, Israel, Italy,
Jordan, Kazakhstan, Kenya, Kossovo, Kuwait, Kyrgyzstan, Latvia,
Lebanon, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg,
Macedonia, Madagascar, Malawi, Mali, Malta, Mauritania, Mauritius,
Moldova, Monaco, Mongolia, Morocco, Mozambique, Namibia, Netherlands,
New Caledonia, Niger, Nigeria, Norway, Oman, Pakistan, Poland,
Portugal, Qatar, Republic of Cape Verde, Republic of Equatorial
Guinea, Republic of Guinea, Republic of Senegal, Reunion, Romania,
Russian Federation, Rwandese Republic, Saint Helena, San Marino, Saudi
Arabia, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, South
Africa, Spain, Svalbard and Jan Mayen, Swaziland, Sweden, Switzerland,
Tajikistan, Tanzania, Togo, Tunisia, Turkey, Turkmenistan, Uganda,
Ukraine, United Arab Emirates, United Kingdom, Uzbekistan, Vatican
City State, Yemen, Zaire, Zambia, Zimbabwe, the following applies:
Our agreement is governed by and construed in accordance with the laws
of Ireland and you consent to the jurisdiction of and venue in the
Irish courts in all disputes arising out of or relating to this
agreement.
d. If your principal place of business is in the People's Republic of
China (for the purpose of this agreement, the People's Republic of
China does not include Hong Kong S.A.R. or Taiwan), the following
applies:
Our agreement shall be construed and controlled by the laws of the
People's Republic of China, and the you consent to submit any dispute
arising out of or in relation to the agreement and the Addendum to the
binding arbitration at the China International Economic and Trade
Arbitration Commission in Beijing (CIETAC) in accordance with its
rules in effect from time to time.
e. If your principal place of business is in Colombia or Uruguay, the
following applies:
All disputes, claims or proceedings between the parties relating to
the validity, construction or performance of this agreement shall be
settled by arbitration in accordance with UNCITRAL Arbitration Rules
as at present in force. The appointing authority shall be the
International Chamber of Commerce ("ICC") acting in accordance with
the rules adopted by the ICC for this purpose and the place of
arbitration will be Seattle, Washington, U.S.A. There shall only be
one arbitrator. The award shall be in law and not in equity and shall
be final and binding on the parties. The parties hereto irrevocably
agree to submit all matters and disputes arising in connection with
this agreement to arbitration in Seattle, Washington, U.S.A.
f. If your principal place of business is in Republic of Korea, the
following applies:
Our agreement shall be construed and controlled by the laws of
Republic of Korea, and you consent to exclusive original jurisdiction
and venue in the Seoul District Court. In any action to enforce any
right or remedy under this agreement or to interpret any provision of
this agreement, the prevailing party shall be entitled to recover its
reasonable attorneys' fees, costs and other expenses.
g. If your principal place of business is in Taiwan, the following
applies:
The terms of this agreement shall be governed by and construed in accordance
with the laws of Taiwan. The parties hereby designate the Taipei District Court
as the court of first instance having jurisdiction over any disputes arising out
of or in connection with this agreement