EXHIBIT 10.9
2001 Microsoft'r' Certified Partner Agreement
Core Terms and Conditions
This Microsoft Certified Partner Agreement (the "Microsoft Certified
Partner Agreement" or "Agreement", as defined more fully below) is
between the Microsoft Corporation or that Microsoft subsidiary,
affiliate or related company ("MICROSOFT) specifically identified in
the "Country Annex" with respect to a "Territory"; and the business
entity (the "Microsoft Certified Partner") identified in the signature
box in the "Country Annex" and identified in the "Final Invoice", as
those terms are defined below. All provisions of this Microsoft
Certified Partner Agreement apply to all business entities authorized
as Microsoft Certified Partners at the Member Level or Gold Level of
the Microsoft Certified Partner Program, including those which are also
Microsoft Certified Technical Education Centers ("Microsoft CTECs"), as
those terms are defined below.
1. DEFINITIONS:
The following definitions apply to this Microsoft Certified
Partner Agreement:
"Microsoft Certified Partner" means the business entity which
has met all requirements set out by MICROSOFT in this
Microsoft Certified Partner Agreement (including, but not
limited to, those specified in the Microsoft Certified Partner
Program Guide); which has been accepted by MICROSOFT into the
Microsoft Partner Program as a Microsoft Certified Partner in
the manner established in this Microsoft Certified Partner
Agreement; and which provides the Services (defined below);
and either (i) maintains full-time, exclusive relationships
with the Microsoft Certified Professionals (defined below)
specified in the Microsoft Certified Partner Program Guide; or
(ii) has exclusive rights to a software product with respect
to which Microsoft has granted Microsoft Certified Partner the
right to use either the "Designed for Microsoft BackOffice"
logo, the "Certified for Windows 2000" logo, or the "Microsoft
Certified for Windows" logo (respectively, a "BackOffice Logo
Product", a "Certified for Windows 2000 Logo Product", or a
"Windows Logo Product") in accordance with Microsoft's
relevant logo agreements, as identified in the Microsoft
Certified Partner Program Guide.
"Microsoft Certified Partner Agreement" or "Agreement" means
this Microsoft Certified Partner Agreement, including but not
limited to, collectively, these Microsoft Certified Partner
Core Terms and Conditions (the "Microsoft Certified Partner
Agreement Terms"), the Country Annex, the Microsoft Certified
Partner Program Guide, the Business Profile Online (once
submitted by Microsoft Certified Partner), the Final Invoice
(once its acceptance is indicated by Microsoft Certified
Partner), the Logo Guidelines (which shall be attached to the
hard copy of these Microsoft Certified Partner Agreement Terms
that accompanies the Welcome Kit), and, as applicable, the
Site Annex, the additional requirements for Microsoft
Certified Partners at the Gold Level set out in the Gold Level
section of the Microsoft Certified Partner private website,
the Microsoft Certified Technical Education Center Addendum,
the Microsoft CTEC Program Guide, and any other applicable
annexes, addenda and program guides, all as may be amended
from time to time. The Site Annex, the Country Annex, and the
Microsoft Certified Partner Program Guide are incorporated
herein by reference.
"Microsoft Certified Partner Program Guide" means the program
guide which contains the specific requirements and benefits
for Microsoft Certified Partners at the Member Level or Gold
Level. The Microsoft Certified Partner Program Guide may be
subject to change from time to time, at MICROSOFT's sole
discretion.
"Final Invoice" means the invoice provided to the Microsoft
Certified Partner which identifies the Microsoft Certified
Partner and indicates the proper Microsoft Certified Partner
fee (and, if the Microsoft Certified Partner is also a
Microsoft CTEC, the Microsoft CTEC fee) for the Sites and
Territory. All renewing and newly enrolling Microsoft
Certified Partners and Microsoft CTECs
must indicate their acceptance of that invoice and submit the
appropriate fees by one of the means specified in that invoice
or this Agreement.
"Territory" means the territory specifically set forth in the
Country Annex.
"Sites" means (1) separate legal entities owned and controlled
by the Microsoft Certified Partner or which, together with the
Microsoft Certified Partner, are under the common ownership
and control of a third party, or (2) the additional divisions
or offices of the Microsoft Certified Partner which are not
located at the Microsoft Certified Partner's principal place
of business. Unless otherwise provided, the term "Microsoft
Certified Partner" in this Agreement shall be deemed to
include any Sites specified in the "Site Annex".
"Effective Date" means the date of transmission of MICROSOFT's
electronic mail notification of acceptance to a new Microsoft
Certified Partner or renewing Microsoft Certified Partner,
which shall be confirmed by a written letter delivered within
a Welcome Kit.
"Term" means the period from the Effective Date to and through
December 31, 2001, and any subsequent one-year renewal terms
as described in Section 3 below.
"Services" means IT-related services provided to third
parties, from which the Microsoft Certified Partner must
derive that percentage of its total revenues specified in the
Microsoft Certified Partner Program Guide. Services may
include, but are not limited to, consulting, implementation,
training, custom application development, software migration,
application architecture design, system integration,
e-commerce application development, Web and application
hosting and maintenance/support.
"Service Organization" means a business entity that provides
Services to third party customers.
"Independent Software Vendor" or "ISV" means a business entity
that develops and sells packaged software solutions.
"Application Service Provider" or "ASP" means a business
entity that provides, delivers, hosts and/or manages software
applications and software-based services from a centrally
located facility to customers through the Internet or a
private network on a rental or subscription basis.
"Support Center" means a technical support entity with which
Microsoft or an applicable Microsoft subsidiary has contracted
to perform technical support services concerning the
applicable Products, for customers in those Regions in which
the Support Center has indicated its desire to be a Support
Center, and in which it has met applicable requirements.
"Microsoft Certified Professional" means an individual who has
been certified by MICROSOFT, or a third party authorized by
MICROSOFT, as a Microsoft Certified Professional, Microsoft
Certified Systems Engineer, Microsoft Certified Solution
Developer, Microsoft Certified Trainer, or other certified
professional designation that MICROSOFT authorizes.
"Microsoft Gold Certified Partner" or "Microsoft Certified
Partner at the Gold Level" means a Microsoft Certified Partner
in good standing which has been approved to be upgraded to the
Gold Level of the Microsoft Certified Partner Program upon
meeting the additional Microsoft Gold Certified Professional
and verified reference requirements set forth in the Gold
Level section of the Microsoft Certified Partner private
website. Microsoft Gold Certified Partners will be qualified
by area of specialization: e-commerce, advanced
infrastructure, training, support center, data center for
application hosting and/or other areas of specialization that
MICROSOFT designates. Each area of specialization will have
its own unique requirements which will be listed in the Gold
Level section of the Microsoft Certified Partner private
website. Microsoft Gold Certified Partners will be authorized
to use a Microsoft Gold Certified Partner logo (the "Gold
Logo") with respect to, and only with respect to, those
services it offers in those areas of specialization in which
it has qualified as a Microsoft Gold Certified Partner.
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"Microsoft CTEC" means a Microsoft Certified Partner which
MICROSOFT has approved as a Microsoft Certified Technical
Education Center and which provides the training services
defined and described in the Microsoft Certified Technical
Education Center Addendum and Microsoft CTEC Program Guide.
"Microsoft CTEC Program Guide" shall have the meaning defined
in the Microsoft Certified Technical Education Center
Addendum. The Microsoft CTEC Program Guide may be subject to
change from time to time, at MICROSOFT's sole discretion.
"Welcome Kit" means, collectively, the Microsoft Certified
Partner Welcome Kit, the Microsoft Gold Certified Partner
Welcome Kit, and the Microsoft CTEC Welcome Kit. Welcome Kits
may contain additional terms, such as Logo Guidelines, which
must be accepted by the Microsoft Certified Partner before the
Welcome Kit seal is broken.
"Microsoft Certified Partner Welcome Kit" means the kit
provided upon acceptance into the Microsoft Certified Partner
program that includes the first set of products and other
program specific materials. Microsoft Certified Partner
Welcome Kits may contain additional terms, such as Logo
Guidelines, which must be accepted by the Microsoft Certified
Partner before the Microsoft Certified Partner Welcome Kit
seal is broken.
"Microsoft CTEC Welcome Kit" means the kit provided upon
acceptance into the Microsoft CTEC program that contains
materials to assist the new Microsoft CTEC with the program.
Microsoft CTEC Welcome Kits may contain additional terms, such
as Logo Guidelines, which must be accepted by the Microsoft
Certified Partner before the Microsoft CTEC Welcome Kit seal
is broken.
"Microsoft Gold Certified Partner Welcome Kit" shall mean the
kit provided upon acceptance into the Microsoft Certified
Partner Program at the Gold Level. Microsoft Gold Certified
Partner Welcome Kits may contain additional terms, such as
Logo Guidelines, which must be accepted by the Microsoft Gold
Certified Partner before the Microsoft Gold Certified Partner
Welcome Kit seal is broken.
"Identity Kit" means the materials which depict the Microsoft
Certified Partner logo ("Microsoft Certified Partner Logo"),
Microsoft Gold Certified Partner logo ("Gold Logo") and/or any
Microsoft CTEC program logos (which, together with the
Microsoft Certified Partner Logo and Gold Logo shall be
referred to as the ."Logos"), and which set out guidelines
(the "Logo Guidelines") governing their use and placement. The
Identity Kit shall be provided to each approved Microsoft
Certified Partner and Microsoft CTEC with the applicable
Welcome Kit; and a hard copy of the Logo Guidelines shall be
attached to the hard copy of these Microsoft Certified Partner
Agreement Terms that accompanies the Welcome Kit.
"Products" means those Microsoft software products which the
Microsoft Certified Partner is licensed to use under this
Microsoft Certified Partner Agreement, as well as other
software products which Microsoft Corporation or an authorized
Microsoft subsidiary may, from time to time, license the
Microsoft Certified Partner to use, but excluding any Beta
Software (defined below).
"Beta Software" shall mean any pre-release Territory-specific
version of certain Microsoft software products together with
any associated media, printed materials, and "online" or
electronic documentation and related information, which
MICROSOFT may elect, at its sole discretion, to deliver to
Microsoft Certified Partner.
2. CONTRACT FORMATION; APPOINTMENT
Formation of this Agreement, including any future renewal
agreements, is subject to MICROSOFT's final discretion to
approve the admission of any new applicant or renewing
Microsoft Certified Partner, and will not be complete until
(a) the Microsoft Certified Partner has
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submitted all information required in the Member Application
and Business Profile Online; (b) signed this Agreement
(electronically or otherwise); (c) received the Final Invoice
and accepted its terms; (d) received MICROSOFT's electronic
mail notice of acceptance, which has been confirmed by a
written letter from MICROSOFT delivered with the Microsoft
Certified Partner Welcome Kit; and (e) confirmed and ratified
its agreement to be bound by the terms of this Agreement, and
manifested its acceptance of the Logo Guidelines, by opening
the Welcome Kit. Subject to completion of the formation
process set out above, including MICROSOFT's final approval of
any new applicant or renewing Microsoft Certified Partner
(which shall be indicated as set out above), and to the
Microsoft Certified Partners compliance with all requirements
and obligations established by MICROSOFT for participation in
the Microsoft Certified Partner Program, MICROSOFT hereby
appoints the business entity identified in the signature box
in the Country Annex as a Microsoft Certified Partner at the
Member Level in the Territory on a non-exclusive basis. The
Microsoft Certified Partner accepts this appointment on the
terms set out in this Agreement. The Microsoft Certified
Partner understands and agrees that MICROSOFT has the right
but not the obligation, on a non-exclusive basis, to upgrade
the Microsoft Certified Partner to the Gold Level of the
Microsoft Certified Partner Program, and/or to approve the
Microsoft Certified Partner as a Microsoft CTEC. If the
Microsoft Certified Partner is upgraded to the Microsoft
Certified Partner Gold Level and/or is approved to be a
Microsoft CTEC, then the Microsoft Certified Partner shall be
required to meet certain additional requirements and
obligations and shall receive the additional benefits related
to any appointments or upgrades.
3. TERM AND TERMINATION
A. Term: This Agreement shall take effect on the Effective
Date and, unless earlier terminated as provided herein, shall continue until
December 31 , 2001. Upon expiration or earlier termination of this Agreement,
all rights and benefits granted by this Agreement shall revert to MICROSOFT, and
the Microsoft Certified Partner shall immediately cease use of and shall destroy
all copies of (i) any Products, including, but not limited to all those used
under "Microsoft Certified Partner Product Licenses" (as defined in Section
8.A., below) for internal and marketing use, and all those used under "Microsoft
Certified Partner Training Licenses" (as defined in Section 8.B., below), (ii)
any Beta Software, (iii) MSDN, TechNet, and TechNet Plus licenses, and (iv) the
Microsoft Certified Partner Logo and, if applicable, the Gold Logo and/or any
Microsoft CTEC program logos, and shall cease to represent itself as a Microsoft
Certified Partner. Additionally, the Microsoft Certified Partner shall
immediately destroy any and all Product and Beta Software media and materials in
the Microsoft Certified Partners possession or control. Termination and/or
expiration of this Agreement shall immediately terminate the Microsoft CTEC
Addendum and any other applicable addenda, and terminate any appointment of
Microsoft Certified Partner as a Microsoft Gold Certified Partner and/or
Microsoft CTEC.
B. Termination Without Cause: Either party shall have the
right to terminate this Agreement at any time, without cause and without the
intervention of the courts, on the delivery of thirty (30) calendar days' (Japan
only: sixty (60) calendar days') prior written notice. Neither party shall be
responsible to the other for any costs or damages resulting from the termination
of this Agreement.
C. Immediate Termination With Cause: Unless otherwise
prohibited by law and without prejudice to MICROSOFT's other rights or remedies,
MICROSOFT shall have the right to immediately terminate this Agreement, without
prior written notice to Microsoft Certified Partner, in the event that any of
the following occurs:
1. If Microsoft Certified Partner breaches its duties to
Microsoft under Section 6 of this Agreement with
respect to use of Logos; or
2. If Microsoft Certified Partner engages in, or
participates with any third party in, the
unauthorized manufacture, duplication, distribution
or use of any MICROSOFT products, or otherwise
engages in misappropriation or unauthorized
disclosure of any trade secret or confidential
information of MICROSOFT, or infringes any other
intellectual property right of MICROSOFT, or engages
in any other activities which the laws of the
Territory prohibit.
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D. Termination With Cause: Without prejudice to MICROSOFT's
other rights or remedies, MICROSOFT shall have the right to terminate this
Agreement immediately if one or more of the following events occurs and is not
cured within thirty (30) calendar days (Japan only: sixty (60) calendar days)
after Microsoft Certified Partner has received notice from MICROSOFT that the
occurrence constitutes a breach of the Agreement;
1. If the Microsoft Certified Partner makes any
assignment for the benefit of creditors, files a
petition in bankruptcy, is adjudged bankrupt, becomes
insolvent, or is placed in the hands of a receiver.
The equivalent of any of these proceedings or acts,
however designated in the Territory, shall likewise
constitute grounds for termination of this
Agreement', or
2. If the Microsoft Certified Partner breaches any other
terms or conditions of this Agreement.
E. Termination of Sites: The expiration or earlier termination
of this Agreement, shall also terminate all Sites as Microsoft Certified
Partners. Within thirty (30) calendar days (Japan only: sixty (60) calendar
days) from the effective date of any termination or expiration of the Agreement,
any Site may apply independently for authorization to become a Microsoft
Certified Partner.
4. MICROSOFT CERTIFIED PARTNER SITES
Upon Microsoft Certified Partner's request, MICROSOFT may
approve the Sites indicated on the Site Annex as additional
Microsoft Certified Partners, if the Sites are also located in
the Territory and each individually meets the Microsoft
Certified Partner requirements. The Microsoft Certified
Partner shall be responsible for paying the additional fees
for each Site. If the Site is a separate legal entity,
Microsoft Certified Partner unconditionally and irrevocably
guarantees payment of the fee, and the compliance of that Site
with the terms and conditions of this Agreement.
5. PAYMENT
During the initial Term and any renewal Terms, the fee for the
appointment as a Microsoft Certified Partner under this
Agreement shall consist of annual payments as follows:
A. The Microsoft Certified Partner fee, which is the amount
(determined by the fee schedule set forth in Table 1 of the Program Guide)
indicated in the Final Invoice; and
B. The Site fee, which will vary depending on the number of
Sites, and is the amount (determined by the fee schedule set forth in Table 1 of
the Program Guide) indicated in the Final Invoice.
C. The Microsoft Certified Partner understands and agrees that
if it is appointed as a Microsoft CTEC, it shall be required to pay the
Microsoft CTEC fee indicated in the Final Invoice.
6. MICROSOFT CERTIFIED PARTNER LOGO
Subject to completion of the contract formation process set
out in Section 2, above, Microsoft hereby grants to Microsoft
Certified Partner a non-exclusive, non-transferable, personal
license to use the Microsoft Certified Partner Logo (and if
applicable, the Gold Logo and/or Microsoft CTEC program logo)
depicted in the Identity Kit (the "Logos") only during the
term of this Agreement and in the Territory, according to the
terms herein, and according to the specifications in the Logo
Guidelines (which shall be contained in the Identity Kit, and
a hard copy of which shall be attached to the hard copy of
these Microsoft Certified Partner Agreement Terms that
accompanies the Welcome Kit). All rights not expressly granted
herein are reserved by Microsoft. Microsoft Certified Partner
acknowledges Microsoft's sole ownership of the Logos and
Microsoft mark, and all associated goodwill. Nothing in this
Agreement or in the performance thereof, or that might
otherwise be implied by law, shall operate to grant Microsoft
Certified Partner any right, title, or interest in the Logos
other than as specified in the limited license grant herein.
Microsoft Certified Partner's use of the Logos shall inure
solely to the benefit of Microsoft.
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Microsoft Certified Partner may use the Logos only on material
as set forth in the specifications in the Logo Guidelines,
identifying Microsoft Certified Partner as a "Microsoft
Certified Partner" (or, if applicable, as a "Microsoft Gold
Certified Partner" and/or "Microsoft Certified Technical
Education Center"). Microsoft Certified Partner agrees that it
will not use the Gold Logo unless it has been specifically
authorized to do so by Microsoft on the basis of its
qualification as a Microsoft Gold Certified Partner in one or
more areas of specialization; and that it will use the Gold
Logo only with respect to those services it offers in those
areas of specialization in which it has qualified as a
Microsoft Gold Certified Partner. Microsoft Certified Partner
agrees to maintain the quality of services offered in relation
to the Logos at a level commensurate with the quality of
services offered by Microsoft Certified Partner before the
Effective Date, and that meet or exceed standards of quality
and performance generally accepted in the industry. Microsoft
Certified Partner will not use the Logos in any manner that
will diminish or otherwise damage Microsoft's goodwill in the
Logos. Microsoft Certified Partner will not adopt, use, or
register any corporate name, trade name, trademark, domain
name, service mark or certification mark, or other designation
confusingly similar to the Logos. Microsoft Certified Partner
agrees to correct any deficiencies in its use of the Logos
within a reasonable time upon receipt of notice from
Microsoft. Microsoft Certified Partner shall immediately cease
all use of the Logos upon expiration or termination of this
Agreement.
7. Microsoft Certified Partner RESPONSIBILITIES AND OBLIGATIONS
A. Membership Application and Business Profile Online: The
Microsoft Certified Partner agrees to complete and keep current the information
requested by Microsoft on any registration or application form, including the
Member Application and Business Profile Online. The Microsoft Certified Partner
warrants that all information it provides shall be true and correct to the best
of its knowledge and belief. Microsoft Certified Partner agrees to notify
MICROSOFT in writing promptly of any changes in such information, providing
relevant details.
B. Microsoft Certified Professionals: The Microsoft Certified
Partner agrees that it shall at all times employ the number and types of
Microsoft Certified Professionals as set forth in the Microsoft Certified
Partner Program Guide and, if applicable, the Microsoft CTEC Program Guide.
C. BackOffice Logo and Windows Logo Products. The Microsoft
Certified Partner agrees that if it has been granted the right to use either the
"Designed for Microsoft BackOffice" logo, "Certified for Windows 2000" logo or
the "Microsoft Certified for Windows" logo with respect to any software product
to which Microsoft Certified Partner holds exclusive rights, it shall at all
times use the relevant logo only in accordance with Microsoft's relevant logo
agreements, as identified in the Microsoft Certified Partner Program Guide.
D. Service Estimate: The Microsoft Certified Partner shall use
its best efforts to realize that certain percentage of its gross revenues
specified in the Microsoft Certified Partner Program Guide from the provision of
Services. The percentage of gross revenues shall be computed from total revenues
derived from Services provided to third parties, and shall not include any
services, support, training or product distribution provided to any of the
Microsoft Certified Partner's Sites.
E. Piracy: Microsoft Certified Partner shall use its best
efforts to prevent the unauthorized manufacture, duplication, distribution or
use of the Products, and it will not knowingly engage in or facilitate the
distribution or supply or transfer of counterfeit, pirated or illegal software.
Microsoft Certified Partner shall take all available steps to protect MICROSOFT
in the Territory against piracy or other infringement of any copyright or
trademark, and the misappropriation or unauthorized disclosure of any MICROSOFT
trade secret or confidential information, and to protect MICROSOFT's right,
title and interest in and to the Products. Microsoft Certified Partner shall
promptly notify MICROSOFT of any infringement in the Territory of any copyright
or of any trademark of MICROSOFT, or of any misappropriation or unauthorized
disclosure of any trade secret or confidential information of MICROSOFT.
8. MICROSOFT RESPONSIBILITIES AND OBLIGATIONS
A. MICROSOFT Product Licenses for Internal and Marketing Use:
Subject to completion of the contract formation process set out in Section 2,
above, MICROSOFT hereby grants the Microsoft Certified
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Partner, including each Site listed in the Site Annex, a non-exclusive,
nontransferable, royalty-free, terminable license to make and use the number of
authorized copies of the Products set forth in the Microsoft Certified Partner
Program Guide, for internal and marketing uses only ("Microsoft Certified
Partner Product Licenses"). These Microsoft Certified Partner Product Licenses
may only be used by Microsoft Certified Partner staff on site for internal
business purposes, application development, testing, training and demonstration.
Microsoft Certified Partner Product Licenses may not be resold, transferred, or
assigned to any third party, and are not intended for employee personal use at
home, for hosting customer's applications, or for installation at a customer
site. Microsoft Certified Partner Product Licenses will expire at the end of the
term of the 2001 Microsoft Certified Partner Agreement; and Microsoft Certified
Partners must then remove all copies of Microsoft Certified Partner Products
licensed through the Microsoft Certified Partner 2001 program unless valid
licenses are either purchased for them, or, if applicable, obtained by renewal
as a Microsoft Certified Partner in the 2002 Microsoft Certified Partner
Program.
1. MICROSOFT reserves the right to change the Products
and/or the number of authorized Microsoft Certified
Partner Product Licenses above, from time to time and
in its sole discretion. Microsoft reserves the right
to audit use of Microsoft Certified Partner Product
Licenses.
2. Microsoft Certified Partner's use of the authorized
Microsoft Certified Partner Product Licenses is
subject to the additional terms and conditions of
each Product's corresponding End User License
Agreement, including but not limited to, any
limitations of liability and disclaimers of
warranties. The terms of this grant of Microsoft
Certified Partner Product Licenses amend the
conflicting terms of any End User License Agreements
to the extent of any conflict; however, the
provisions of such End User License Agreements
otherwise remain in full force and effect.
B. Training Use Licenses: The Microsoft Certified Partner, at
its sole cost and expense, may offer training to customers on "Microsoft Desktop
Products", as defined in the Microsoft Certified Partner Program Guide. Subject
to completion of the contract formation process set out in Section 2, above,
MICROSOFT hereby grants the Microsoft Certified Partner permission to make the
number of authorized copies set forth in the Microsoft Certified Partner Program
Guide for the sole purpose of providing training on the Microsoft Desktop
Products ("Microsoft Certified Partner Training Licenses"). Use of the Microsoft
Certified Partner Training Licenses is subject to the following conditions: (i)
the Microsoft Certified Partner may only reproduce the Products for which the
Microsoft Certified Partner conducts training classes; (ii) the Microsoft
Certified Partner agrees to be bound by the terms of the relevant Product's
Microsoft End User License Agreement for each Microsoft Certified Partner
Training License copy, except that such copies shall not be resold, transferred,
or assigned to a third party, (iii) the Microsoft Certified Partner shall
strictly control use of any authorized Microsoft Certified Partner Training
License copies in accordance with the End User License Agreement; (iv) all
authorized Microsoft Certified Partner Training License copies of the Products
shall be true and complete authorized copies, including all copyright and
trademark notices; and (v) upon completion of training conducted outside of the
Microsoft Certified Partners own premises, the Microsoft Certified Partner shall
destroy all Microsoft Certified Partner Training License copies installed
outside of the Microsoft Certified Partner's own premises.
C. Product Support: The Microsoft Certified Partner may
receive the product support benefits set forth in the Microsoft Certified
Partner Program Guide and, if applicable, the Microsoft CTEC Program Guide. The
specific terms and conditions relating to use of product support shall be as
specified under the terms of a separate product support agreement between the
Microsoft Certified Partner and MICROSOFT.
D. Advertising and Promotional Materials: MICROSOFT may, in
its sole discretion, reference the Microsoft Certified Partner in advertising
and promotional materials in connection with the sale and promotion of the
Products. Uses of the Microsoft Certified Partner's name and other Business
Profile Online information provided by Microsoft Certified Partner include, but
are not limited to: lists of Microsoft Certified Partners for customer
information, and advertising of the Microsoft Certified Partner program
containing the Microsoft Certified Partner's name. When a specific advertisement
or promotion containing only the Microsoft Certified Partner's name is planned,
MICROSOFT will obtain the Microsoft Certified Partner's written permission
before such use. MICROSOFT shall also obtain the Microsoft Certified Partner's
written permission before use of any logo of the Microsoft Certified Partner.
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E. Changes in the Microsoft Certified Partner Agreement
Features: The Microsoft Certified Partner understands that MICROSOFT may expand,
change the scope or contents of, and/or eliminate, any benefits offered under
the Microsoft Certified Partner program, including but not limited to expanding,
changing the scope or contents of and/or eliminating the Microsoft Certified
Partner Program Guide and, if applicable, the Microsoft CTEC Program Guide. In
the event that Microsoft Certified Partner is dissatisfied with any changes
MICROSOFT makes to any program features, Microsoft Certified Partner may
terminate this Agreement in accordance with Section 3.B., but will have no other
recourse against MICROSOFT.
9. BETA SOFTWARE
MICROSOFT, at its sole discretion, may periodically provide
Beta Software to the Microsoft Certified Partner through the
Microsoft TechNet Plus program. Any such Beta Software
delivered through the Microsoft TechNet Plus program shall be
licensed to and used by Microsoft Certified Partner only in
accordance with those terms and conditions established by
MICROSOFT for TechNet Plus licensees, including, but not
limited to the terms and conditions of the "Microsoft
Corporation Master License Agreement for Beta Software
(TechNet Plus)" (the "TechNet Plus Beta License"). If, at the
sole discretion of MICROSOFT, any Beta Software is provided to
Microsoft Certified Partner through other channels, such Beta
Software may be accompanied by an online Microsoft End User
License Agreement ("XXXX") included in the set-up procedure,
in which case such Beta Software Product-specific XXXX shall
supersede the terms of the TechNet Plus Beta License only to
the extent of any inconsistency and only with regard to the
Beta Software Product accompanying such XXXX. With regard to
terms that are not inconsistent, or in the absence of such
Beta Software Product-specific XXXX, the TechNet Plus Beta
License shall control. The Microsoft Certified Partner
understands and agrees that the Beta Software may be used only
by the Microsoft Certified Partner and its employees and that
it is not entitled to receive any particular Beta Software or
any commercial release version of any Beta Software. The Beta
Software provided herein may not contain all features
ultimately included in the commercial release version of the
software product and may contain features that will disable it
at the end of the license period. MICROSOFT will not provide
any product support for the Beta Software.
10. AUDIT
Each Microsoft Certified Partner, and where relevant, each
Site, shall keep all usual and proper books and records
pertaining to reproduction and use of the Products. During the
Term of this Agreement, MICROSOFT and/or its designated
representatives, shall have the right to audit (including by
inspecting and copying any such books and records) the
Microsoft Certified Partner or any Sites, in order to verify
its or their compliance with the terms of this Agreement,
including restrictions on reproduction and use of the Products
and Beta Software, and the certifications of the Microsoft
Certified Professionals on its staff. MICROSOFT shall conduct
audits during the Microsoft Certified Partner's normal
business hours and in such a manner as not to interfere
unreasonably with Microsoft Certified Partner's normal
business operations. MICROSOFT will conduct audits only if it
reasonably believes the Microsoft Certified Partner is failing
to comply with the terms of this Agreement, and shall use any
information obtained or observed during the course of the
audit solely for the purposes of determining (i) whether the
Microsoft Certified Partner or Site is reproducing and using
any Products or Beta Software in compliance with the terms of
this Agreement, and is otherwise in compliance with this
Agreement and any applicable laws; and (ii) of enforcing its
rights under this Agreement and any applicable laws. Except to
the extent necessary to enforce its rights, Microsoft and its
representatives will hold all such information in confidence.
11. CONFIDENTIALITY
Except as otherwise provided herein, each party expressly
undertakes to retain in confidence all information and
know-how transmitted or disclosed to the other that the
disclosing party has identified as being proprietary and/or
confidential or that, by the nature of the circumstances
surrounding the disclosure, ought in good faith to be treated
as proprietary and/or confidential, and expressly undertakes
to make no use of such information and know-how except under
the terms
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and during the existence of this Agreement. However, neither
party shall have an obligation to maintain the confidentiality
of information that (i) it received rightfully from a third
party prior to its receipt from the disclosing party; (ii) the
disclosing party has disclosed to a third party without any
obligation to maintain such information in confidence; or
(iii) is independently developed by the obligated party.
Further, either party may disclose confidential information as
required by governmental or judicial order, provided such
party gives the other party prompt written notice prior to
such disclosure and complies with any protective order (or
equivalent) imposed on such disclosure. Each party shall treat
all MICROSOFT product adaptation materials as confidential
information and shall not disclose, disseminate, or distribute
such materials to any third party without the other's prior
written permission. Each party's obligation under this Section
shall extend to the earlier of such time as the information
protected hereby falls into the public domain through no fault
of the obligated party or five (5) years following termination
or expiration of this Agreement.
12. NEW PRODUCTS
Notwithstanding any other provisions of this Agreement,
MICROSOFT may elect at any time during the term of the
Agreement to announce new MICROSOFT Products to which the
terms and conditions of this Agreement may not apply. New
versions, updates, and maintenance releases of existing titles
are not considered new MICROSOFT Products.
13. NO IMPLIED OR STATUTORY WARRANTIES; ANY WARRANTIES MUST BE
DELIVERED IN A LICENSE AGREEMENT; DISCLAIMERS
Except for any limited express warranties (if any) provided to
Microsoft Certified Partner by any applicable license
agreement accompanying the Products or Beta Software (the
"Limited Warranty"), no other warranties are made by MICROSOFT
with respect to any Products or Beta Software, Welcome Kits,
any program guides, or any other services, information, or
materials provided by MICROSOFT to Microsoft Certified Partner
as part of or under this Agreement, or on any web site
providing or containing any of the foregoing (collectively,
"Microsoft Materials"). EXCEPT FOR ANY SUCH LIMITED WARRANTIES
(IF ANY) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, MICROSOFT PROVIDES THE MICROSOFT MATERIALS "AS IS" AND
"AS AVAILABLE" AND THE ENTIRE RISK AS TO THE SATISFACTORY
QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH THE
MICROSOFT CERTIFIED PARTNER. MICROSOFT HEREBY DISCLAIMS ALL
WARRANTIES, CONDITIONS, OR DUTIES OF EVERY NATURE WHATSOEVER
(except any duties of good faith), INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, ANY OTHER IMPLIED WARRANTIES, AND ANY
STATUTORY OR EXPRESS WARRANTIES (other than any Limited
Warranty), AND ANY OTHER WARRANTIES OR DUTIES, INCLUDING BUT
NOT LIMITED TO ANY REGARDING ACCURACY, COMPLETENESS,
TIMELINESS, PERFORMANCE, WORKMANLIKE EFFORT, LACK OF
NEGLIGENCE OR VIRUSES OR INTERRUPTED SERVICE, OR ARISING FROM
USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
FURTHER, THERE IS NO WARRANTY OF TITLE, ENJOYMENT, OR LACK OF
INFRINGEMENT, OR THAT THE PROVISION OR OPERATION OF ANY
MICROSOFT MATERIALS WILL BE TIMELY OR UNINTERRUPTED.
Neither Microsoft Certified Partner nor any of its employees
or agents shall have the right to make any representation,
warranty, or promise or to give any instructions for use of
any Product or other Microsoft Materials which instruction is
not contained on the Product label or container, or expressly
authorized by Microsoft Corporation in a writing.
14. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND OTHER DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL MICROSOFT BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
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CONSEQUENTIAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES OR LOSSES
WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS
INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR
FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF
REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY
OR OTHER LOSS WHATSOEVER), ARISING OUT OF OR IN ANY WAY
RELATED TO THE MICROSOFT MATERIALS (as defined in Section 13),
EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND EVEN IN THE EVENT OF FAULT, TORT (INCLUDING
NEGLIGENCE) OR STRICT OR PRODUCT LIABILITY OR
MISREPRESENTATION.
15. LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
Subject to applicable law and notwithstanding any damages that
Microsoft Certified Partner may incur for any reason
whatsoever, (including without limitation, all damages
referenced in Section 14 above, and all direct or general
damages), THE ENTIRE LIABILITY OF MICROSOFT FOR ANY BREACH OF
THE AGREEMENT OR FOR ANY CAUSE OF ACTION OF ANY NATURE
(INCLUDING WITHOUT LIMITATION, TORT OR PRODUCTS LIABILITY), OR
UNDER ANY LIMITED WARRANTY, OR WITH RESPECT TO THE MICROSOFT
MATERIALS, AND MICROSOFT CERTIFIED PARTNER'S EXCLUSIVE REMEDY
AGAINST MICROSOFT (except for any remedy of repair or
replacement elected by MICROSOFT or any other person under any
Limited Warranty), SHALL BE LIMITED TO THE AMOUNT OF DAMAGES
(other than damages excluded under Section 14) ACTUALLY
INCURRED BY MICROSOFT CERTIFIED PARTNER IN REASONABLE
RELIANCE, UP TO AN AMOUNT WHICH IS THE GREATER OF (a) THE
AMOUNT ACTUALLY PAID BY MICROSOFT CERTIFIED PARTNER FOR THAT
PORTION OF THE MICROSOFT MATERIALS THAT CAUSES THE DAMAGE, OR
(b) FIVE DOLLARS (US$5.00). The foregoing limitations,
exclusions and disclaimers (including Sections 13 and 14,
above) shall apply to the maximum extent permitted by
applicable law, even if any remedy fails of its essential
purpose.
16. MICROSOFT CERTIFIED PARTNER WARRANTIES AND INDEMNITIES
A. Warranties. Microsoft Certified Partner hereby represents
and warrants for its-elf and its Sites as listed in the "Site Annex" to
MICROSOFT as follows:
1. That Microsoft Certified Partner and all Sites meet
all requirements set out in this Microsoft Certified
Partner Agreement.
2. That all activities it undertakes as a Microsoft
Certified Partner, including any and all services it
offers or provides under that designation, shall be
performed with due care and skill, in compliance with
any and all applicable laws in the Territory, and in
a manner which will not in any way, directly or
indirectly, bring that designation (or any other
designation, name or mark with which MICROSOFT is
associated) into disrepute. In particular, but
without limiting the foregoing, Microsoft Certified
Partner shall deal in a reasonable manner with any
end user complaint concerning a product or service it
provides or performs. Microsoft Certified Partner
shall be deemed to have acted reasonably concerning
any such complaint if it responds to it promptly and
in good faith, and assists MICROSOFT to honor the
terms and conditions of the End User License
Agreement applicable to any Product which may be
related to the subject of the complaint.
3. That it shall not hold itself out as an agent or
legal partner of MICROSOFT, or attempt to bind
MICROSOFT to any third party agreement; and that it
shall inform its customers that the Microsoft
Certified Partner is an independent business from
MICROSOFT,
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including by placing in all advertising and marketing
materials it distributes to customers, and in all
customer contracts, the following statement:
"Microsoft Certified Partner is an independent
business entity from Microsoft, is not an agent or
legal partner of Microsoft, and has no authority to
legally bind Microsoft in any way."
4. That the representatives of Microsoft Certified
Partner who have signed (or otherwise indicated
acceptance of) this Agreement, electronically or
otherwise, are the authorized representatives of
Microsoft Certified Partner duly empowered to act on
behalf of the Microsoft Certified Partner and to make
the Agreement legally binding on the Microsoft
Certified Partner. Microsoft Certified Partner hereby
further represents and warrants that it has had an
opportunity to thoroughly review all terms and
conditions of the Agreement, including but not
limited to, the materials available on the web site
that contains the Microsoft Certified Partner
Agreement Terms, the Country Annex, the Microsoft
Certified Partner Program Guide, and, as applicable,
the Site Annex, the Microsoft Certified Technical
Education Center Addendum, the Microsoft CTEC Program
Guide, and any other applicable annexes, addenda and
program guides.
5. That all information provided (a) during the online
and/or off-line contracting process, (b) in the
Microsoft Certified Partner application, the Business
Profile Online, and/or (c) in the Agreement is true
and correct.
B. Indemnities. Microsoft Certified Partner hereby agrees to
defend, indemnify and hold MICROSOFT, its successors and parents, subsidiaries
and affiliates and its and their employees, officers and directors, harmless
from and against any claim, loss, damage, costs or expenses (including
reasonable attorney's fees) arising out of or in any way connected with
performance of the services, obligations or rights, or from the acts or
omissions of the Microsoft Certified Partner (or any of its agents or employees)
in connection with this Agreement, including, but not limited to, claims arising
from breach of any warranty by Microsoft Certified Partner.
17. U.S. GOVERNMENT LICENSE RIGHTS
All Products provided to the U.S. Government pursuant to
solicitations issued on or after December 1, 1995, are
provided with the commercial license rights and restrictions
described elsewhere herein. All Products provided to the U.S.
Government pursuant to solicitations issued prior to December
1, 1995 are provided with "RESTRICTED RIGHTS" as provided for
in FAR, 48 C.F.R. 52.227-14 (June 1987) or DFAR, 48 CFR
252.227-7013 (OCT 1988), as applicable. Microsoft Certified
Partner shall be responsible for ensuring that all Products
are marked with the "Restrictive Rights Notice" or "Restricted
Rights Legend", as required. All rights not expressly granted
are reserved.
18. Export Restrictions
Microsoft Certified Partner acknowledges that the Products are
subject to U.S. export jurisdiction. Microsoft Certified
Partner agrees to comply with all applicable international and
national laws that apply to the Products, including the U.S.
Export Administration Regulations, as well as end-user,
end-use, and destination restrictions issued by U.S. and other
governments. For additional information on exporting Microsoft
products, see xxxx://xxx.xxxxxxxxx-xxx/xxxxxxxxxx.
19. GENERAL
A. Notices. Except as otherwise provided, all notices,
authorizations, and requests in connection with this Agreement shall be in a
writing or other record that is signed, electronically or otherwise and shall be
deemed received two business days after transmission by email or facsimile, five
business days after being deposited in the mail (prepaid) for delivery in the
same country, or ten business days after being deposited in the mail (prepaid)
for delivery between different countries, at the addresses set forth in the
Final Invoice or to such other address as the party to receive the notice so
designates by written notice to the other.
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B. Entire Agreement: English-language Agreement Controls. This
Agreement shall constitute the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
communications including all prior and current Microsoft Certified Solution
Provider Agreements. Except as otherwise provided herein, this Agreement shall
only be amended in writing or in a record that is signed electronically or
otherwise. In the event of any inconsistency between this Agreement in the
English language and any translation of it into another language, the
English-language Agreement shall control.
C. Governing Law; Attorneys' Fees. This Agreement shall be
governed by the laws of the country in which MICROSOFT has its principal place
of business. If either MICROSOFT or the Microsoft Certified Partner employs
attorneys to enforce any rights arising out of or relating to this Agreement,
the primarily prevailing party shall be entitled to recover reasonable costs and
attorney's fees.
D. Severability. If a particular provision of this Agreement
is terminated or held by a court of competent jurisdiction to be invalid,
illegal, or unenforceable, this Agreement shall remain in full force and effect
as to the remaining provisions.
E. No Waiver. No waiver of any breach of any provisions of
this Agreement shall constitute a waiver of any prior, concurrent, or subsequent
breach of the same or any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized representative of
the waiving party.
F. No Partnership or Other Legal Organization. Neither this
Agreement, nor any terms and conditions contained herein, shall be construed as
creating a partnership, joint venture, franchise or agency relationship. The
Microsoft Certified Partner expressly acknowledges and agrees that as used in
this Agreement and the Microsoft Certified Partner Program, the designation
"Partner" is intended to indicate membership in the program but not a legal
partnership, joint venture, or other legal organization or entity.
G. No Agency. The Microsoft Certified Partner agrees that it
shall inform its customers that the Microsoft Certified Partner is an
independent business from MICROSOFT, and that it shall not hold itself out as an
agent or legal partner of MICROSOFT, or attempt to bind MICROSOFT to any third
party agreement.
H. Survival of Terms. Sections 9, 11, 13, 14, 15, 16, 17, 18
and 19 and the terms of the Country Annex shall survive the expiration or
earlier termination of this Agreement.
I. No Assignment. Microsoft Certified Partner may not assign,
sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or
obligations under it, without MICROSOFT's prior written consent.
J. Agreement is Subject to Authorized Completion and
Approvals. CONDITIONS TO MICROSOFT APPROVAL OF THE MICROSOFT CERTIFIED PARTNER
OR THIS AGREEMENT INCLUDE, BUT ARE NOT LIMITED TO THE FOLLOWING: AN AUTHORIZED
REPRESENTATIVE OF ANY NEWLY ENROLLING OR RENEWING MICROSOFT CERTIFIED PARTNER
MUST ACCURATELY COMPLETE THIS MICROSOFT CERTIFIED PARTNER AGREEMENT AND ALL
REQUIRED INFORMATION IN THE BUSINESS PROFILE ONLINE AND SIGN (ELECTRONICALLY OR
OTHERWISE) OR OTHERWISE ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT. AN
AUTHORIZED REPRESENTATIVE OF THE MICROSOFT CERTIFIED PARTNER MUST THEN INDICATE
ACCEPTANCE OF THE FINAL INVOICE (ELECTRONICALLY OR OTHERWISE) AND SUBMIT PAYMENT
OF THE APPROPRIATE FEES TO MICROSOFT.
THE MICROSOFT CERTIFIED PARTNER AND MICROSOFT AGREE
THAT NO BINDING AGREEMENT (INCLUDING ANY RENEWAL)
SHALL BE FORMED UNTIL MICROSOFT HAS FINALLY APPROVED
MICROSOFT CERTIFIED PARTNER AS A MICROSOFT CERTIFIED
PARTNER. MICROSOFT'S APPROVAL SHALL ONLY BE EVIDENCED
BY DELIVERY BY MICROSOFT OF ELECTRONIC MAIL
NOTIFICATION OF ACCEPTANCE, WHICH IS CONFIRMED IN A
WRITTEN LETTER DELIVERED BY MICROSOFT TO A NEW OR
RENEWING MICROSOFT CERTIFIED PARTNER WITHIN A
MICROSOFT CERTIFIED PARTNER
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WELCOME KIT. THE PARTIES AGREE THAT NO OTHER ACT BY
MICROSOFT SHALL CONSTITUTE ITS ACCEPTANCE OF THIS
AGREEMENT OR ITS APPROVAL OF THE MICROSOFT CERTIFIED
PARTNER, INCLUDING BUT NOT LIMITED TO THE CASHING OF
THE MICROSOFT CERTIFIED PARTNER'S CHECK OR ANY OTHER
ACCEPTANCE OF PAYMENT OF FEES.
BY SIGNING (ELECTRONICALLY OR OTHERWISE), OR
OTHERWISE ACCEPTING THIS AGREEMENT, OR BY OTHERWISE
ACCEPTING ANY BENEFITS OF THIS AGREEMENT, THE
MICROSOFT CERTIFIED PARTNER REPRESENTS AND WARRANTS
THAT SUCH SIGNING OR ACCEPTANCE IS SUFFICIENT TO MAKE
THIS AGREEMENT LEGALLY BINDING ON THE MICROSOFT
CERTIFIED PARTNER. THE MICROSOFT CERTIFIED PARTNER
MUST ALSO INDICATE ACCEPTANCE (ELECTRONICALLY OR
OTHERWISE) OF A FINAL INVOICE, AND SUBMIT THE
APPROPRIATE FEES TO MICROSOFT; AND MUST MANIFEST ITS
ACCEPTANCE OF THE LOGO GUIDELINES BY OPENING THE
WELCOME KIT.
IF ELECTRONIC OR OTHER ACCEPTANCE WILL NOT LEGALLY
BIND THE MICROSOFT CERTIFIED PARTNER OR IF MICROSOFT
BELIEVES (IN ITS SOLE DISCRETION) THAT THE
CAPABILITIES OF THE ONLINE COMMUNICATIONS IN
MICROSOFT CERTIFIED PARTNER'S TERRITORY ARE LIMITED
IN SCOPE, MICROSOFT CERTIFIED PARTNER MUST SIGN THIS
AGREEMENT BY RETURNING TO MICROSOFT A COPY OF IT THAT
IS SIGNED NON- ELECTRONICALLY BY AN AUTHORIZED
OFFICER, EMPLOYEE, OR AGENT OF THE MICROSOFT
CERTIFIED PARTNER, AND SUBMITTING THE APPROPRIATE
FEES UPON RECEIPT OF AND IN ACCORDANCE WITH THE TERMS
OF THE FINAL INVOICE.
================================================================================
----keep this agreement for your records----
================================================================================
Country Annex to Microsoft Certified Partner Agreement
Microsoft Certified Partner/ Microsoft CTEC
The terms and conditions set forth herein are incorporated by reference into the
Microsoft Certified Partner Agreement. To the extent any terms set forth in this
Country Annex are in conflict with the Core Terms and Conditions, the terms set
forth herein shall govern.
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