These agreement outline the basics involved with being a WebsiteSpark Web Pro.
Check the "I accept" box under each agreement to move on to the next step.
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Microsoft® WebsiteSpark™ Web Pro Agreement
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Microsoft® WebsiteSpark™ Web Pro Agreement
These terms are an agreement between the company (“Web Pro”) who meets eligibility requirements for the Microsoft®
WebsiteSpark™ Program (“Program”) and wishes to enroll in the Program, and Microsoft, governing Web Pro’s participation in the
Program. Please read them.
BY CLICKING THE “I ACCEPT” BUTTON, WEB PRO AGREES TO BE BOUND BY THIS AGREEMENT, THE PROGRAM GUIDE, AND THE
PROGRAM WEBSITE (INCLUDING ITS TERMS OF USE, CODE OF CONDUCT, AND PRIVACY STATEMENT), AND REPRESENTS THAT IT HAS
READ AND UNDERSTANDS THIS AGREEMENT. WEB PRO MUST ACCEPT THIS AGREEMENT AND THE PROGRAM LICENSE TERMS BEFORE
IT CAN PARTICIPATE IN THE MICROSOFT HOSTSPARK PROGRAM, AND THE SPLA ESSENTIALS AGREEMENT BEFORE EXERCISING ANY
HOSTING AND PRODUCTION RIGHTS UNDER THE PROGRAM.
1. Scope. The Program is designed to help web professional companies whose primary business is building or designing websites for
their clients, by (a) providing them with access to Microsoft technology resources in order for them to design and develop
websites for their clients, and to host those websites on behalf of their clients, and (b) connecting them with hosters and other
business partners. Web Pro’s participation in this program is voluntary. Nothing in this Agreement restricts Web Pro from
supporting, promoting, distributing or using non-Microsoft technology.
2. Definitions.
“Agreement” means these Web Pro Agreement terms.
“Development Software” means the Microsoft software that Web Pro may license and use under the Program solely to design,
develop, test and demonstrate Web Pro Websites. Development Software is identified in the Program Guide and may also
include fixes and/or automatic updates.
“Hosting Servers” means the Microsoft server software that Web Pro may license and use under the Program solely to host
Web Pro Websites for Web Pro’s provision of Software Services (as defined in Annex A) to Web Pro Clients (both as defined in
Annex A). Hosting Servers are identified in the Program Guide and may also include fixes and/or automatic updates.
“Microsoft” means Microsoft Corporation, or its affiliates as appropriate (see Section 10.12).
“Network Partner” means the person or organization that sponsored Web Pro for membership into the Program and which
may provide business assistance to Web Pro during its participation in the Program.
“Program Agreements” means this Agreement, the Program License Terms, and (as applicable) the SPLA Essentials Agreement.
“Program Benefits” means any Microsoft technology (including software), services, information, materials and other benefits
offered to Web Pro under the Program, excluding Special Offers which will be governed by separate terms and conditions per
Section 4.4.
“Program Guide” means the guide for the Program, located on the Program Website. The Program Guide provides additional
guidance about the Program and Program requirements.
“Program License Terms” means the Program’s license terms for the Development Software. Together with this Agreement,
the Program License Terms governs the use rights for the Development Software.
“Program Materials” means the Program Guide and the Program Website (including its Terms of Use, Code of Conduct, and
Privacy Statement).
“Program Offering Fee” means the fee Web Pro will pay at the end of its participation in the Program, as further described in
the Program Guide.
“Program Services” means support and other services or advice provided under the Program, as further described in the
Program Guide, but excluding any services or advice under Special Offers which will be governed by separate terms and
conditions per Section 4.4.
“Program Software” means the Microsoft software (Development Software and Hosting Servers) and associated
documentation provided under the Program, as further described in the Program Guide, but excluding any software or
associated documentation under Special Offers which will be governed by separate terms and conditions per Section 4.4.
“Program Website” means the WebsiteSpark section of the website currently located at http://www.microsoft.com/web or
equivalent local site, or a successor site designated by Microsoft. The Program Website provides Program tools and
information, including the Program Guide.
“Special Offers” means additional special offers for Web Pros participating in the Program, that may be made available (by
Microsoft or others) from time to time during Web Pro’s tenure in the Program.
“SPLA Essentials Agreement” means Microsoft’s Service Provider License Agreement Essentials agreement, the terms of which
can be reviewed at http://spla-essentials.partners.extranet.microsoft.com/Information/AgreementSample. Together with this
Agreement, the SPLA Essentials Agreement governs the use rights for the Hosting Servers.
“Web Pro Websites(s)” has the meaning defined in Annex A to this Agreement.
3. Program.
3.1. Program participation. Web Pro’s participation in the Program is conditioned on its acceptance of and compliance with this
Agreement and the terms applicable to specific Program Benefits, as well as its compliance with the Program Materials.
3.2. Payment. At the end of its participation in the Program, Web Pro will pay the Program Offering Fee, as further described in
the Program Guide.
3.3. Administration. Microsoft will administer the Program and related benefits through the Program Website and Program
communications. Microsoft may use the Web Pro information provided by Web Pro on the Program Website to contact
Web Pro for matters relating to the Program and/or this Agreement.
3.4. Changes. Microsoft may change or discontinue the Program or any aspect of it, but will give Web Pro at least 60 calendar
days email or written notice if Microsoft intends to discontinue the Program. For all other changes, Web Pro is responsible
for checking the Program Website regularly. Web Pro will be bound by Program Materials changes as of the date the
changes are posted, but the changes will not apply retroactively.
3.5 Advertising and publicity.
a. Both Web Pro and Microsoft may reference the fact that Web Pro is a participant in Microsoft’s WebsiteSpark program,
as long as any referential use of word marks in plain text form complies with the respective party’s external posted
trademark guidelines Microsoft’s general trademark guidelines are currently located at
http://www.microsoft.com/about/legal/trademarks/usage/general.mspx. Any use by Web Pro of any logos related to
the Program will be per the terms of a separate logo agreement and relevant Microsoft usage guidelines.
b. Enrollment in the Microsoft Partner Network (MPN) is a feature of participation in WebsiteSpark. Once enrolled in
MPN, Web Pro will have the opportunity to submit a profile of its company to the MPN Marketplace or other Microsoft
online properties (collectively, “Microsoft Online Properties”). Web Pro is solely responsible for all content it submits,
and by submitting any content, Web Pro is giving Microsoft, its affiliates and necessary sublicensees permission to use
that content, including any logos or other trademarks it might contain, on the Program Website and other Microsoft
Online Properties. Web Pro’s submission of content to and use of the Program Website and Microsoft Online
Properties will accord with the Program Materials and/or the terms of use for those Microsoft Online Properties, which
may be amended by Microsoft from time to time.
c. Other than the foregoing, (i) any use by a party of any stylized logos of the other party for publicity or promotions will be
per the terms of a separate agreement, and (ii) Microsoft will ask Web Pro’s permission if Microsoft would like to use
more detailed descriptions of the Web Pro, its business, or its participation in the Program in advertisements or
promotions relating to the Program. Web Pro agrees not to unreasonably withhold or delay its permission. If Microsoft
does not receive Web Pro’s response within 30 calendar days, lack of response will signify that Web Pro has granted its
permission.
4. Program Benefits.
4.1. General. Program participants will receive certain benefits under the Program as described in the Program Guide.
Program Benefits may have additional terms and conditions (including licenses) associated with them. Before using any
Program Benefit, Web Pro must accept applicable additional terms, including (a) the Program License Terms with respect
to Development Software, (b) a Microsoft Partner Network (MPN) agreement with respect to MPN benefits, and (c) if Web
Pro chooses to use Hosting Servers to host Web Pro Websites for its customers) the SPLA Essentials Agreement with
respect to Hosting Servers. Web Pro’s use of Program Benefits is conditioned on its acceptance of applicable additional
terms, and Web Pro’s use will be in accordance with those additional terms and this Agreement. If Web Pro does not
agree, Web Pro is not authorized to use the Program Benefit(s).
4.2. Program Services. Web Pro’s use of Program Services will be governed by separate terms and conditions (including
regarding service deliverables, if any). Program Services include (a) two Program Software telephone support calls for the
person registered as Web Pro’s primary contact on the Program Website, which support calls are governed by the terms
at http://support.microsoft.com/default.aspx/gp/csa or successor site that Microsoft identifies, and (b) other services, such
as online training, described in the Program Guide, subject to any terms and conditions specific to those services.
Otherwise, neither the Program nor this Agreement includes support services. Other Program Services may be added to
the Program from time to time. Delivery of Program Services depends on Web Pro’s full and timely cooperation, as well as
the accuracy and completeness of any information Web Pro provides.
4.3. Program Software.
a. General. The Program Software that Web Pro receives under the Program may only be used as expressly provided in
the Program Agreements and Program Materials, and may not be sublicensed or otherwise transferred to others. Each
of Web Pro’s employees or principals that wish to use Development Software must accept the Program License Terms
prior to downloading his or her own copy of Development Software through the Program.
b. Program Software use rights.
i. Under the Program, Web Pros may use Program Software as follows:
(a) Development Software, to design, develop, test and demonstrate Web Pro Websites for its customers, and
(b) Hosting Servers, to host Web Pro Websites for its customers.
Web Pro’s rights to use Hosting Servers to host Web Pro Websites for its customers are further described in Annex
A of this Agreement, as well as the SPLA Essentials Agreement and the Program Materials. Development Software
and Hosting Servers are identified in the Program Guide, as it may be updated from time to time.
ii. Use rights. Together with this Agreement, (a) the Program License Terms describes the use rights for the
Development Software, and (b) the SPLA Essentials Agreement describes the use rights for the Hosting Servers.
Web Pro may only use the Program Software in accordance with these use rights. The use rights are version-
specific. The Program Agreements may be updated from time to time, but Microsoft will use commercially
reasonable efforts to provide notice of removals from the list of Program Software or substantive changes to
Program Software use terms on the Program Website or other Microsoft designated website in advance.
iii. Order of precedence between license terms.
(a) Product end user license terms. The terms of the Program Agreements (including this Agreement) supersede
and control over any end user license terms that may accompany Development Software (“product License
Terms”), even if installation of the Development Software requires Web Pro to “accept” separate product
license terms. If product license terms accompany a fix, the use rights contained in those product license
terms (but not any warranties from Microsoft), which do not conflict with the Program License Terms and this
Agreement, apply.
(b) Program Materials and other agreements. If there is any direct inconsistency between (i) the terms of this
Agreement and (ii) Program Materials or terms applicable to specific Program Benefits (including but not
limited to the Program License Terms or SPLA Essentials Agreement), that is not resolved expressly in those
documents, the terms of this Agreement will supersede and control. If a particular subject is addressed in the
Program Materials or in terms applicable to specific Program Benefits and not in this Agreement, the terms of
the Program Materials or terms applicable to specific Program Benefits regarding that subject will control.
c. Obtaining Program Software. After accepting this Agreement and the Program License Terms, Web Pro may obtain the
Program Software through the MSDN (Microsoft Developer Network) delivery infrastructure. Microsoft may change the
process for obtaining Program Software from time to time upon at least 30 calendar days prior notice.
d. Counterfeit and other illegal software and infringements. Web Pro will not engage, or participate with any third party, in
the unauthorized manufacture, duplication, delivery, transfer or use of counterfeit, pirated, unlicensed or illegal
Program Software, or otherwise infringe any of Microsoft’s intellectual property rights. Web Pro will reasonably
cooperate with Microsoft and its affiliates in the investigation of any such activities. As soon as Web Pro becomes aware,
Web Pro will report to Microsoft any suspected instances of any such activities with respect to Program Software,
marketing materials, or other copyrighted materials owned by Microsoft, its affiliates and/or its licensors.
e. No technology transfer arrangement. This Agreement does not create a “technology transfer” agreement, as may be
defined by applicable law, because (i) 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 (ii) the technology (including
any software) will have its own technology license. Web Pro will not hold itself out as Microsoft’s technology recipient
and will not attempt to identify Microsoft as a technology provider under this Agreement.
4.4. Special Offers not part of Program Benefits. By virtue of its participation in the Program, Web Pro may also be eligible for
Special Offers. However, Special Offers are not Program Benefits as defined in this Agreement (i.e., are not governed by
this Agreement, other Program Agreements, or any Program Materials, or covered by the Program Offering Fee), and Web
Pro’s participation in Special Offers will be governed by the separate terms and conditions for each Special Offer
(including licenses, and fees if any).
4.5. Reservation of rights. Microsoft owns and retains all right, title and interest in and to, the Program Software and other
Program Benefits, including without limitation all intellectual property. Microsoft reserves all rights not expressly granted
in this Agreement.
5. Web Pro representations and warranties. Web Pro represents and warrants that:
5.1. It has the full right and power to enter into and perform according to the terms of this Agreement, and its performance will
not violate any agreement or obligation between it and any third party;
5.2. At the time of its initial enrollment and at each annual renewal of its enrollment in the Program, it meets all Program
eligibility requirements outlined in the Program Guide, and it will immediately notify its Network Partner and Microsoft if
and when it becomes ineligible to participate in this Program as outlined in the Program Guide; and
5.3. It will not use Program Software or other Program Benefits to provide any services to others (such as hosting) other than as
expressly provided in this Agreement and (as applicable) the SPLA Essentials Agreement.
6. Verifying compliance. Web Pro will provide Microsoft with the URLs of new Web Pro Websites it has created using the Program
Software on a quarterly basis, via the Program Website. Microsoft may provide these URLs to vendors acting on its behalf for
analysis of Web Pro’s compliance with Program requirements. Microsoft may also (a) conduct audits of Web Pro’s compliance as
provided in section 7 of the SPLA Essentials Agreement (b) otherwise contact Web Pro (c) collect data from the Program
Website, the Program Software delivery infrastructure, production license use reports described in Annex A, and/or Windows
Genuine Advantage or other similar mechanisms or programs and/or (d) take action, to ensure that Web Pro does not use or
activate more software than authorized by the Program Agreements or Program Materials, uses that software in accordance with
Program requirements, and otherwise is in compliance with Program requirements.
7. Other warranties and limitations; warranty disclaimers; no Web Pro representations or warranties re Program Software; Web
Pro responsibility for its Web Pro Client and Hosting Partner relationships; indemnification.
7.1. Microsoft warrants that it will use reasonable care and skill to administer the Program. Web Pro’s effort and resulting
performance in the Program are under Web Pro’s control and are Web Pro’s sole responsibility. Microsoft does not warrant
or guarantee Web Pro’s satisfaction with the Program or Web Pro results.
7.2. Except for the express warranty in section 7.1, to the maximum extent permitted under applicable law:
a. Program Benefits are provided “AS IS” and without warranty of any kind, and Web Pro will bear the entire risk of
satisfactory quality, performance, and accuracy and effort for the Program Benefits, and
b. Microsoft disclaims on its own behalf and on behalf of its affiliates and suppliers all other representations, warranties,
and conditions, whether express, implied or statutory. This disclaimer includes title, non-infringement, merchantability,
satisfactory condition or quality, merchantability, fitness for a particular purpose, accuracy, completeness, system
integration, and timeliness. The disclaimer also includes any implied warranty or conditions arising from course of
dealing or usage of trade, or any common law duties relating to accuracy or lack of negligence with respect to the
Program Benefits. If applicable law gives Web Pro any implied warranties, guarantees or conditions despite this
exclusion, those warranties will be limited to one year and Web Pro’s remedies will be limited by the section of this
Agreement entitled “Limitations and exclusions of liability and remedy” to the maximum extent allowable.
7.3. Web Pro must not make any representation or warranty about any Program Software to any Web Pro Client or other third
party on Microsoft’s behalf. Web Pro is solely responsible for all claims, liabilities and damages arising from or in connection
with hosting of and all content on Web Pro Websites, including its (i) provision of Software Services (defined in Annex A) to
its clients and/or (ii) use of a Hosting Partner (as defined in Annex A) to host Web Pro Websites.
7.4. Web Pro will defend, indemnify and hold Microsoft harmless from any third-party claims (including, without limitation,
reasonable attorney’s fees) arising from Web Pro’s acts or omissions (including those of its agents) relating to Web Pro’s
performance under this Agreement, including but not limited to those referenced in Section 7.3 above.
8. Limitations and exclusions of liability and remedy.
8.1. Neither party will be liable to the other for any loss (whether direct or indirect) of profits, data, business or anticipated
savings, or due to business interruption. 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 Program Benefits, termination or
otherwise).
8.2. To the extent permitted by applicable law, the liability of Microsoft and of its agents and contractors to Web Pro arising
under this Agreement is limited to direct damages up to the amount of the Program Offering Fee paid or owed by Web
Pro to Microsoft. These limitations apply regardless of whether the liability is based on breach of contract, tort (including
negligence), strict liability, breach of warranties, or any other legal theory.
8.3. The only remedy that the parties may have for any claim arising out of or related to this Agreement is to terminate this
Agreement, and as provided in section 8.6 below if applicable. The terms of this Section 8 apply to the maximum extent
permitted under applicable law regardless of the form of action; whether any remedy has failed its essential purpose; or
whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranty, or any
other legal theory.
8.4. The limitations and exclusions of liability and remedy in this Section 8 do not apply to breaches of Section 5 (Web Pro
representations and warranties) or of the intellectual property rights or indemnification provisions of this Agreement, or
to fraud, gross negligence, intentional misconduct, or death or personal injury caused by negligence (provided that, in any
jurisdiction that does not recognize a legal distinction between “gross negligence” and “negligence”, “gross negligence” as
used in this Section 8 is deemed to mean “recklessness”).
8.5. Business purposes. Web Pro confirms that it is entering this Agreement, and acquiring the Program Benefits under it, for
business purposes only. Web Pro agrees that the provisions of any applicable consumer protection legislation do not
apply to this Agreement to the extent that contracting out of such legislation is permitted by law.
8.6. Consumer rights. Nothing in this Agreement is intended to limit the rights of a consumer, as defined by applicable law. This
Agreement is considered to be modified as necessary to reflect this intention. Consumers may have the benefit of certain
rights or remedies which may not be excluded under applicable law. If applicable law gives Web Pro any implied terms,
despite the parties’ agreed exclusions and limitations in this Agreement, then to the extent permitted by applicable law,
Web Pro’s remedies are limited to either, at Microsoft’s option, (i) repair, replacement or re-supply of Program Services or
other relevant Program Benefit, or (ii) refund of the Program Offering Fee or forgiveness of Web Pro’s obligation to pay
the Program Offering Fee.
9. Term and Termination.
9.1. Term. This Agreement will take effect on the date that Web Pro accepts this Agreement by clicking the “I ACCEPT” button
below, and will continue for three years from that date, unless terminated earlier pursuant to Sections 9.2, 9.3 or 9.4
below (“Term”).
9.2. Termination without cause. Either party may terminate this Agreement at any time, without cause, upon 60 calendar days’
notice. Neither party will be responsible to the other for costs or damages resulting from termination.
9.3. Termination for cause - general. If either party breaches any provision of this Agreement, and the cause for termination is
curable, the non-breaching party will give 30 calendar days’ email or written notice and an opportunity to cure. If the
cause for termination is not curable, termination will take effect immediately upon notice from the non-breaching party.
Microsoft retains its other rights and remedies.
9.4. Immediate termination. This Agreement will immediately terminate without necessity of notice, if:
a. Web Pro breaches of any of the representations and warranties in Section 5, or otherwise does not comply with
Program eligibility or other Program requirements contained in this Agreement, Program Materials, or terms
applicable to specific Program Benefits;
b. Web Pro is acquired or otherwise makes an assignment in contravention of Section 10.6;
c. Web Pro makes an initial public offering or otherwise becomes a publicly traded company;
d. the Program is discontinued; or
e. Web Pro ceases to do business in the normal course; admits in writing its inability to pay its debts as they become
due; becomes or is declared insolvent or bankrupt; Is the subject of any proceeding under any bankruptcy act,
receivership statute or the like, as they now exist or as they may be amended, related to its liquidation or insolvency
(whether voluntary or involuntary) which is not dismissed within 90 calendar days, or makes an assignment for the
benefit of creditors.
9.5. Statutory form. Microsoft reserves the right to either terminate or vary this Agreement if it is required to use a statutory
form. Termination will be without the use of that form and without any liability to Web Pro.
9.6. Effect of termination. In all events of termination, Web Pro’s (a) access to further Program Benefits and (b) rights to use
Hosting Servers as provided in Annex A will end. Further, when this Agreement terminates per Section 9.4.a (Web Pro
breaches its representations and warranties or otherwise does not comply with Program eligibility or other requirements),
Web Pro will immediately stop using any rights and benefits granted by this Agreement and under the Program and
destroy all Program Software in its possession.
9.7. 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.
9.8. Survival. Sections 2 (Definitions), 4.5 (Reservation of rights), 5 (Web Pro representations and warranties), 6 (Verifying
compliance), 7 (Other warranties and limitations; warranty disclaimers; no Web Pro representations or warranties re
Program Software; Web Pro responsibility for its customer and Hosting Partner relationships; indemnification); 8
(limitations and exclusions of liability and remedy), 9.6 (Effect of termination), 10 (General), and this Section 9.8 (Survival)
will survive the expiration or termination of this Agreement.
10. General.
10.1. Taxes.
a. Software Services-related taxes. Taxes relating to Web Pro’s use of Hosting Servers are governed by the tax provisions of
the SPLA Essentials Agreement.
b. Other Program-related taxes. The amounts to be paid by Web Pro to Microsoft under the Program do not include any
taxes. Web Pro is responsible for all of the taxes it is legally obligated to pay including paying to Microsoft any value
added, goods and services, sales or use taxes or like taxes that Web Pro owes solely because it entered into this
Agreement and which the law requires Microsoft to collect from Web Pro. Microsoft will not collect the taxes covered
by a valid exemption certificate. Microsoft is not liable for any taxes that Web Pro must pay that relate in any way to this
Agreement. Web Pro will pay all such taxes, including net income or gross receipts taxes, franchise taxes, and property
taxes. If the law requires taxes to be withheld on any amounts owed to Microsoft, Company will deduct those taxes.
Company will promptly pay the taxes to the appropriate taxing authority. Company will deliver to Microsoft an official
receipt for withheld taxes or other documents so that Microsoft can claim a ‘U.S. Foreign Tax Credit.’ Company will use
reasonable efforts to minimize those taxes to the extent allowed by law.
10.2. Relationship between the parties. Microsoft may call Company a ‘partner’ for reference purposes only. Web Pro is an
independent contractor. This Agreement does not create a partnership, joint venture, agency, franchise relationship, or
any fiduciary duty. Web Pro may not (a) bind Microsoft, (b) vary any Microsoft terms, conditions, warranties, or covenants,
or (c) create or purport to create in favor of any person any rights that Microsoft has not previously authorized in writing.
10.3. No representations. Web Pro has not relied on any representations by Microsoft about the Program Benefits or the
Program in deciding to acquire them or to enter into this Agreement or participate in the Program. Web Pro warrants that
it has relied on its own skill and judgment or that of Web Pro’s advisers in relation to these matters. However, neither
party limits or excludes liability for fraudulent misrepresentations.
10.4. Notices. All notices and requests to Web Pro in connection with this Agreement will be sent to the named contact person
and the address Web Pro provides in its Program profile on the Program Website. See the Program Website for notices
and requests to Microsoft. Notices are deemed delivered on the date shown on the confirmation of delivery or
publication to the Program Website. Web Pro will give Microsoft prompt notice if Web Pro becomes insolvent or enters
insolvency, bankruptcy or other similar proceedings.
10.5. Compliance with laws.
a. Export restrictions. Any Program Software or other Program Benefits that Web Pro receives is subject to U.S. export
laws and regulations. Web Pro must comply with all domestic and international export laws and regulations that apply
to the licensed software Web Pro receives as a benefit of the Program. The laws include restrictions on destinations,
end-users and end use. For additional information, see http://www.microsoft.com/exporting/.
b. Approvals, laws and regulations. Web Pro will, at its own expense, obtain all necessary government approvals and
comply with all applicable laws and regulations, including local anti-corruption laws and the U.S. Foreign Corrupt
Practices Act (“Anti-Corruption Laws”). Microsoft can hire a third-party auditor if it has a good faith reason to believe
Web Pro or its representatives are in violation of the Anti-Corruption Laws. The third-party auditor will investigate the
suspected violations (“Anti-Corruption Audit”) and report its Anti-Corruption Audit findings solely to Microsoft. Web
Pro will fully participate and assist in any Anti-Corruption Audit. Web Pro will make all books, records and employees
promptly available to assist the third-party auditor. Microsoft may terminate this Agreement if Web Pro fails to comply
with this provision. Microsoft will not be liable for damages resulting from such termination.
10.6. Assignment. The availability of Program Benefits under the Program is personal to Web Pro, and Web Pro may not assign
this Agreement or any rights or obligations under it, by operation of law or otherwise, except to an entity that:
a. itself meets Program Web Pro eligibility requirements, and
b. assumes this Agreement in its entirety (including without limitation the warranties in Section 5);
and then only if and when Web Pro:
i. provides notice of the assignment to Microsoft and the Network Partner (or other entity that sponsored the
assigning Web Pro’s initial enrollment in the Program), and
ii. updates its Program profile on the Program Website with the new entity’s information.
Web Pro’s assignment will not relieve Web Pro of its obligations under this Agreement. Any attempted assignment in
contravention of this section is void.
10.7. Waiver. A party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or
remedy. Any waiver must be in writing and signed by the waiving party.
10.8. 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 be construed to give effect to the stricken clause to the maximum extent
possible.
10.9. Entire agreement; changes; Web Pro responsibility for employees and contractors. The terms and conditions of this
Agreement and the Program Materials, together with terms applicable to specific Program Benefits, form the entire
agreement between Microsoft and Web Pro concerning the Program. They replace all prior agreements and
communications between Web Pro and Microsoft or its affiliates relating to the Program. This Agreement can only be
changed by an amendment signed by both parties, but Microsoft may change the Program Materials with respect to
program administration, policies, procedures, guidelines, benefits and similar changes. Web Pro is responsible for (a)
communicating the terms of this Agreement to its employees and contractors, and (b) ensuring their compliance with the
terms of this Agreement.
10.10. Language. Microsoft offers this Agreement in several languages. The language version in which Web Pro accepts this
Agreement will control. If Web Pro is located in Canada, the parties agree that this Agreement, and any associated
Program documentation, be written and accepted in English. C’est la volonté expresse des parties que la présente
convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
10.11. Order of precedence. See Section 4.b.iii and Annex A of this Agreement for order of precedence.
10.12. Microsoft contracting entity. The Microsoft contracting entity for this Agreement is determined by the country/region
Web Pro is located in, as detailed below:
a. The Microsoft entity for the United States is: Microsoft Corporation
b. The Microsoft entity for the rest of the Americas and Caribbean is: Microsoft Puerto Rico S.A.
c. The Microsoft entity for the Republic of Korea is: Microsoft Korea, Inc.
d. The Microsoft entity for the rest of the Asia/Pacific region is: Microsoft Regional Sales Corporation
e. The Microsoft entity for the Europe, Middle East and Africa regions is: Microsoft Ireland Operations Limited
10.13. Jurisdiction and governing law. 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 for a violation of intellectual
property rights or enforcement of recognition of any award or order. Injunctive relief or enforcement of recognition may
be sought in any appropriate jurisdiction. The terms of this Agreement will be governed and construed as follows:
a. If Web Pro’s principal place of business is in Africa, Europe, or the Middle East, this Agreement will be governed by
and construed according to the laws of Republic of Ireland with exclusive venue in the Irish court.
b. If Web Pro’s principal place of business is in Japan, this Agreement will be construed and controlled by the laws of
Japan, and Web Pro consents to exclusive original jurisdiction and venue in the Tokyo District Court. The prevailing
party in any action related to this Agreement may recover its reasonable attorneys' fees, costs and other expenses.
c. If Web Pro’s 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., Macao S.A.R., or Taiwan), this Agreement will be
construed and controlled by the laws of the People’s Republic of China, and Web Pro consents to submit any dispute
arising out of or in relation to the Agreement and any addendum to the binding arbitration at the China International
Economic and Trade Arbitration Commission in Beijing (CIETAC) according to its then current rules.
d. If Web Pro’s principal place of business is in the Republic of Korea, this Agreement will be construed and controlled
by the laws of Republic of Korea, and Web Pro consents to the exclusive original jurisdiction and venue in the Seoul
District Court. The prevailing party in any action to enforce a right or remedy under this Agreement or to interpret a
provision of this Agreement will be entitled to recover its reasonable attorneys' fees, costs and other expenses.
e. If Web Pro’s principal place of business is in Taiwan, this Agreement will 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.
f. If Web Pro’s principal place of business is elsewhere in Asia, this Agreement will be governed by and construed
according to the laws of Singapore. Any dispute related to this Agreement will be referred to and finally resolved by
arbitration in Singapore according to the Arbitration Rules of the Singapore International Arbitration Centre (SIAC).
The SIAC Arbitration Rules are incorporated by reference into this Section 10.13 (Jurisdiction and governing law). The
tribunal will consist of one arbitrator to be appointed by the Chairman of SIAC. The language of the arbitration will be
English. The decision of the arbitrator will be final, binding and incontestable.
g. If Web Pro’s principal place of business is in Colombia or Uruguay, all disputes, claims or proceedings between the
parties relating to the validity, construction or performance of this Agreement will be settled by arbitration in
accordance with UNCITRAL Arbitration Rules as presently in force. The appointing authority will 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 will only be one arbitrator. The award will 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.
h. If Web Pro’s principal place of business is elsewhere (that is, other than specified above in this Section 10.13), this
Agreement will be governed by and construed according to the laws of the State of Washington, U.S.A. If federal
jurisdiction exists, the parties consent to exclusive jurisdiction and venue in the federal courts in King County,
Washington. If not, the parties consent to exclusive jurisdiction and venue in the Superior Court of King County,
Washington.
ANNEX A
HOSTING AND PRODUCTION RIGHTS
NOTE: WEB PRO MUST ACCEPT THE SPLA ESSENTIALS AGREEMENT (AS WELL AS THIS WEB PRO AGREEMENT) BEFORE EXERCISING
ANY HOSTING AND PRODUCTION RIGHTS UNDER THE PROGRAM.
1. Definitions.
The following definitions are used in this Annex A. They may also be used elsewhere in this Agreement and/or the Program License
Terms. Capitalized terms used in this Annex A and not defined below have the meanings in the main body of this Web Pro
Agreement.
“Hosting Partner” means companies identified as such and featured on the Program Website, who can provide hosting services for
Web Pro Websites and with whom Web Pro has contracted to outsource the hosting of Web Pro Websites for Web Pro’s provision of
Software Services to Web Pro Clients. The use of Hosting Servers by Hosting Partners to provide those hosting services for Web Pros is
governed by separate agreement between the Hosting Partner and Microsoft (not this Annex A), and Hosting Partners will obtain
directly from Microsoft the Hosting Servers used by them to provide such hosting services to Web Pro.
“Production Use” means Web Pro’s use of Hosting Servers as provided in this Annex A and the SPLA Essentials Agreement, to self-
host Web Pro Websites for Web Pro Clients.
“Software Services” means, for purposes of this Annex A, the Software Services (as defined in the SPLA Essentials Agreement)
provided by Web Pro Website(s) which are either self-hosted by Web Pro itself, or by a third-party Hosting Partner as described in
the “Hosting Partner” definition above, for Web Pro Clients. Web Pro must provide Software Services itself and not through resellers
(even if Web Pro outsources the actual hosting and provision of these services to a Hosting Partner), on a rental, subscription or
services basis, whether or not Web Pro receives a fee.
“Web Pro Client” means direct customers of Web Pro, on whose behalf Web Pro has developed a Web Pro Website and provides
Software Services. Web Pro Clients may be referred to in the SPLA Essentials Agreement as “End Users”.
“Web Pro Website(s)” means new public and Internet-accessible websites(s):
• developed by Web Pro on behalf of its Web Pro Clients using Program Software;
• that contain significant and primary functionality or content beyond the functionality of Hosting Servers; and
• whose primary purpose is for the Web Pro Client to provide information and/or services to Web Pro Client’s customers.
2. How Hosting Servers may be used.
a. License grant. Subject to the terms of this Agreement and Web Pro’s SPLA Essentials Agreement, Microsoft grants Web Pro
a non-perpetual, non-exclusive, terminable, non-transferable, worldwide and limited right during the term of this Agreement
to internally install and run Hosting Servers, for hosting Web Pro Websites in order for Web Pro to provide Software
Services on behalf of Web Pro Clients, in accordance with the SPLA Essentials Agreement and this Agreement (including this
Annex A).
This Agreement does not transfer any ownership rights in any Hosting Server. Web Pro’s rights to use Hosting Servers do not
give Web Pro any right to implement Microsoft patents or other intellectual property in software or devices that access the
server. Microsoft reserves all rights not expressly granted. Web Pro’s rights under this Annex A will automatically terminate
upon expiration or termination of this Agreement.
b. Relationship with SPLA Essentials Agreement. Notwithstanding anything to the contrary in Web Pro’s SPLA Essentials
Agreement or the applicable Services Provider Use Rights, during the term of this Agreement:
i. Web Pro may use up to four processors, running a total of no more than four (physical or virtual) instances each of the
Windows Web Server Edition and SQL Server Web Edition versions identified in the Program Guide (collectively the
“WebsiteSpark Licenses”). Web Pro may only create instances of the Hosting Servers as necessary for Production Use in
accordance with this Annex A and the SPLA Essentials Agreement.
ii. Web Pro must report usage of the WebsiteSpark Licenses quarterly on the Program Website as provided in section 3 of
this Annex A. Web Pro should not report WebsiteSpark License usage in Web Pro’s SPLA Essentials monthly use report.
iii. The following provisions of the SPLA Essentials Agreement do not apply to Web Pro’s Production Use of Hosting Servers
per this Annex A: the internal use provisions of section 2.b.; the pricing and invoicing provisions of section 6; or the
defense of infringement and misappropriation provisions of section 10.
c. Restrictions on use. Web Pro may not:
i. distribute, transfer or otherwise make available Hosting Servers or any other Program Software to Web Pro Clients, Web
Pro Clients’ customers, Hosting Partners, or anyone else;
ii. use Hosting Servers for Web Pro’s internal business operations, other than as Development Software (by Web Pro
employees or principals who have each accepted their own Program License Terms) to design, develop, test and
demonstrate Web Pro Websites per the Program License Terms;
iii. use Hosting Servers to host websites for Web Pro Clients’ internal business operations;
iv. use Hosting Servers to host any software other than Web Pro Websites; or
v. use Hosting Servers or any other Program Software for any commercial or production use, other than (a) Production
Use in accordance with, and as expressly authorized by, this Annex A and the SPLA Essentials Agreement and (b) use of
Development Software to develop Web Pro Websites for Web Pro Clients in accordance with, and as expressly
authorized by, this Agreement and the Program License Terms.
3. Quarterly WebsiteSpark License use reports.
Web Pro must submit a complete and accurate quarterly WebsiteSpark License use report within 15 days after the last day of
each calendar quarter. If Web Pro fails to submit a complete and accurate quarterly use report by the due date each quarter,
Web Pro will be in breach of this Agreement.
a. Quarterly reporting. Web Pro must submit the quarterly use report through the Program Website page called “Update
Hosted Totals”, or an alternative specified by Microsoft. Web Pro must provide all applicable information requested in the
quarterly use report. At a minimum, each quarterly use report must include the total number of WebsiteSpark Licenses
during the preceding reporting period, by processor for each Hosting Server SKU used by Web Pro (e.g. “2 processors
Windows Web Server [version]; 1 processor SQL Server Web Edition [version]”).
b. Reporting format and procedures. Microsoft may reasonably revise the format of and procedures for submitting the
quarterly use reports. Web Pro will not be required to submit more than one use report per quarter.
c. Use of information. Microsoft will use information provided in this quarterly use report only for usage tracking, reporting,
and compliance purposes.
4. Technical support services.
a. Web Pro support. This Annex A does not include any support services to Web Pro from Microsoft beyond those generally
available under the Program as described in Section 4.2 of the main body of this Agreement.
b. Web Pro Client support. Web Pro is solely responsible for all Web Pro Client support in connection with Web Pro Websites
and Software Services.
Microsoft [Global Web Pro] Program Agreement
|
Microsoft WebsiteSpark™ Program License Terms (EULA)
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Download printer friendly version
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MICROSOFT SOFTWARE LICENSE TERMS
MICROSOFT WEBSITESPARK™ PROGRAM
These license terms apply to the software available under the Microsoft WebsiteSpark™ Program to design, develop, test
and demonstrate Your Websites (defined below) and these license terms are an agreement between Microsoft
Corporation (or based on where you live, one of its affiliates) and You. Please read these license terms. They apply to
the software available to You under this Program, and includes the media on which you received it, if any. The terms
also apply to any Microsoft
• updates,
• supplements,
• Internet-based services, and
• support services
for this software, unless other terms accompany those items. If so, those terms apply.
YOU DO NOT HAVE RIGHTS UNDER THESE LICENSE TERMS UNLESS YOU HAVE ALSO ACCEPTED THE WEB
PRO AGREEMENT. IF THERE’S A CONFLICT BETWEEN THESE LICENSE TERMS AND THE WEB PRO
AGREEMENT, THE WEB PRO AGREEMENT TERMS APPLY. BY INDICATING YOUR ACCEPTANCE OF THESE
TERMS AND USING THE SOFTWARE, YOU ACCEPT THESE LICENSE TERMS AND THE TERMS OF THE WEB
PRO AGREEMENT. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE. INSTEAD, RETURN IT TO
THE MICROSOFT AFFILATE SERVING YOUR COUNTRY.
NOTICE: APPLICATIONS AND SERVICES BUILT WITH MICROSOFT VISUAL J# 2005 WILL RUN ONLY IN
THE MICROSOFT .NET FRAMEWORK. VISUAL J# 2005 HAS BEEN INDEPENDENTLY DEVELOPED BY
MICROSOFT. IT IS NOT ENDORSED OR APPROVED BY SUN MICROSYSTEMS, INC.
AS DESCRIBED BELOW, USING SOME FEATURES ALSO OPERATES AS YOUR CONSENT TO THE
TRANSMISSION OF CERTAIN STANDARD COMPUTER INFORMATION FOR INTERNET-BASED SERVICES.
AS DESCRIBED BELOW IN SECTION 7, USING THE ENGLISH LANGUAGE VERSION OF EXPRESSION 3
DESIGN SOFTWARE OPERATES AS YOUR CONSENT TO THE TRANSMISSION OF CERTAIN COMPUTER
INFORMATION DURING SETUP.
IF YOU COMPLY WITH THESE LICENSE TERMS, YOU HAVE THE RIGHTS BELOW FOR EACH LICENSE YOU
ACQUIRE.
1. DEFINITIONS.
• “You” means the Web Pro employee or business principal participating in the WebsiteSpark Program, in
good standing, who wishes to license the WebsiteSpark Program software. If you are not an employee or
business principal of a Web Pro, then you are not permitted to use the WebsiteSpark Software governed by
these license terms.
• “ Web Pro” means the Website professional who meets the eligibility criteria for the Program and wishes to
enroll (or has enrolled) in the Program.
• “WebsiteSpark”, “WebsiteSpark Program”, or “Program” means the Microsoft ® WebsiteSpark
Program.
• “WebsiteSpark Software” or “Software” means the software offering provided under the WebsiteSpark
Program for the purposes of design, develop, to test and to demonstrate, your Web Pro Websites and
governed by these terms. This software does not include the WebsiteSpark Hosting Servers that can be
used for production use.
• “Web Pro Agreement” means the Web Pro Agreement that a Web Pro must accept (or has accepted) in
order to enroll in the Program.
• “Web Pro Website(s)” or “Your Website” means Website(s) designed and developed by a Web Pro, for
a client, using Program Software obtained during Your participation in the Program.
2. “OVERVIEW.
a. Software. The software includes development tools, software programs and documentation.
b. License Model. The software is licensed on a per user basis and this Program permits up to three (3) user
licenses per Web Pro.
3. INSTALLATION AND USE RIGHTS.
a. General. One user may install and use copies of the software to design, develop, test and demonstrate his or
her Web Pro WebSite(s) including setting up simulated production environments for iterative development and
testing. Testing does not include staging on a server in a production environment, such as loading content prior
to production use.
b. Limitations. You may not use this software to:
• Develop or maintain Your own administrative or IT system.
• Host Websites (in whole or in part) for others, unless You have signed the separate Services Provider
License Agreement (SPLA) Essentials agreement. Together with the Web Pro Agreement, the SPLA
Essentials agreement governs the use of the Website Spark Hosting Servers.
c. Included Microsoft Programs.
i. These license terms apply to all Microsoft programs included with the software. If the license terms with any
of those programs give you other rights that do not expressly conflict with these license terms, you also have
those rights.
d. Pre-release Code. The software contains pre-release code. The license terms with the pre-release code apply
to your use of it.
e. Third Party Programs. The software contains third party programs. The license terms with those programs
apply to your use of them.
4. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS.
a. User Testing. Your end users may access the software to perform acceptance tests on your programs.
b. Use with Virtualization Technologies. You may use the software installed within a virtual (or otherwise
emulated) hardware system. If you do so, you may not play or access content or use applications protected by
any Microsoft digital, information or enterprise rights management technology or other Microsoft rights
management services or use BitLocker. We advise against playing or accessing content or using applications
protected by other digital, information or enterprise rights management technology or other rights management
services or using full volume disk drive encryption.
c. Additional Functionality. Microsoft may provide additional functionality for the software. Other license terms
and fees may apply.
d. Additional License Terms for Windows Server Software
i. Font Components. While the software is running, you may use its fonts to display and print content. You
may only
• embed fonts in content as permitted by the embedding restrictions in the fonts; and
• temporarily download them to a printer or other output device to print content.
ii. No Separation of Server Software. You may not separate the server software for use in more than one
operating system environment under a single license, unless expressly permitted. This applies even if the
operating system environments are on the same physical hardware system.
iii. Windows Server 2008 Terminal Services. Up to 200 anonymous users at a time may use the Terminal
Services feature of the Windows Server software to access Internet demonstrations of your programs. Your
demonstration must not use production data.
e. Distributable Code. The software contains code that you are permitted to deploy on web sites you develop if
you comply with the terms below.
i. Right to Use and Distribute. The code and text files listed below are “Distributable Code.”
• REDIST.TXT Files. You may copy and distribute the object code form of code listed in REDIST.TXT files.
and, for Visual Studio Team System, any files listed on the REDIST list located at
http://go.microsoft.com/fwlink/?LinkID=100327&clcid=0x409.
• Sample Code. You may modify, copy, and distribute the source and object code form of code marked as
“sample” or “Code Snippet”.
• Microsoft Merge Modules. You may copy and distribute the unmodified output of Microsoft Merge
Modules.
• MFCs, ATLs and CRTs. You may modify the source code form of Microsoft Foundation Classes (MFCs),
Active Template Libraries (ATLs), and C runtimes (CRTs) to design, develop and test your programs,
and copy and distribute the object code form of your modified files under a new name.
• Image Library. You may copy and distribute images and animations in the Image Library as described
in the software documentation. You may also modify that content. If you modify the content, it must be
for use that is consistent with the permitted use of the unmodified content.
A. For Expression Studio 2 Software
• Simple Styles. You may copy, modify and distribute the object code form of code identified as
Simple- Styles in Expression Blend.
• Templates. Expression Web includes website design templates. You may copy, modify and
incorporate the templates into web sites you develop and deploy.
• Templates. Expression Encoder contains templates installed in “\Program Files\Microsoft
Expression\Encoder 2\Templates ". You may copy, modify, deploy and distribute these
templates.
• Scripts and Templates. Expression Media contains scripts and templates that you are permitted
to use along with your content. You may copy, modify, and distribute those files marked as
“script” files, “Silverlight Web Galleries” or “HTML Gallery Templates”.
B. For Expression 3 Design Software
• Site Templates. The software contains code marked as “site templates” that you are permitted
to use along with your content. You may copy, modify, deploy and distribute the source and
object code form of these site templates.
• Fonts. You may distribute unmodified copies of the Buxton Sketch font and SketchFlow Print font.
• Icons. The software contains code marked as “icons”. You may distribute unmodified copies of
the icons.
• Templates. The software contains templates installed in “\Program Files\Microsoft
Expression\Encoder 3\Templates ". You may copy, modify, deploy and distribute these
templates.
• Styles. You may copy, modify and distribute the object code form of code identified as “X
Styles”.
• Silverlight Libraries. You may copy and distribute the object code form of code marked as
“Silverlight Libraries”, “Client Libraries” and “Server Libraries.”
• Third Party Distribution. You may permit distributors of Your Website(s) to copy and distribute
the Distributable Code as part of Your Website(s).
ii. Distribution Requirements. For any Distributable Code you distribute, you must
• Display your valid copyright notice on your Website(s);
• add significant content or primary functionality to it within Your Website(s);
• for any Distributable Code having a filename extension of .lib, distribute only the results of
running such Distributable Code through a linker with Your Website(s);
• distribute Distributable Code included in a setup program only as part of that setup program without
modification;
• require distributors and external end users to agree to terms that protect it at least as much as
this agreement; and
• indemnify, defend, and hold harmless Microsoft from any claims, including attorneys’
fees, related to the distribution or use of Your Website(s).
iii. Distribution Restrictions. You may not
• alter any copyright, trademark or patent notice in the Distributable Code or components;
• use Microsoft’s trademarks in your Websites’ names or in a way that suggests your Websites or
Website services come from or are endorsed by Microsoft;
• distribute Distributable Code, other than code listed in OTHER-DIST.TXT files, to run on a
platform other than Microsoft operating systems, run-time technologies or application platforms;
• include Distributable Code in malicious, deceptive or unlawful Websites; or
• modify or distribute the source code of any Distributable Code so that any part of it becomes subject to
an Excluded License. An Excluded License is one that requires, as a condition of use, modification or
distribution, that
• the code be disclosed or distributed in source code form; or
• others have the right to modify it.
5. SILVERLIGHT INSTALLATION. You may use, copy, embed in your Websites, and distribute code in the
Silverlight.js file. You are not allowed to modify this code. This is the only way you may (1) enable installation of
Microsoft Silverlight by your end users, or (2) use the Microsoft images, logos, links, and trademarks referenced in
this code.
6. INTERNET-BASED SERVICES FOR ENGLISH VERSION OF EXPRESSION 3. Microsoft provides Internet-based
services with the English language version of Expression 3 Design software.. It may change or cancel them at any
time.
Setup Reports. The Setup Reports feature is only enabled for users within the United States, as the software will
determine by your computer’s Windows locale setting. If Setup Reports is enabled, at the end of the setup process
the software will send over the Internet to Microsoft basic information about the setup such as the version of the
software and errors encountered during setup. You will not receive a separate notice before this information is sent.
Microsoft may use the information collected for statistical analysis and to improve this and other Microsoft products
and services. Microsoft will not use the information to identify or contact you. For more information about this
feature, if you’re within the United States see http://go.microsoft.com/fwlink/?LinkId=154496 and for all
those outside the United States see http://go.microsoft.com/fwlink/?LinkId=154495
7. POTENTIALLY UNWANTED SOFTWARE. If turned on, Windows Defender will search your computer for
“spyware,” “adware” and other potentially unwanted software. If it finds potentially unwanted software, the software
will ask you if you want to ignore, disable (quarantine) or remove it. Any potentially unwanted software rated “high”
or “severe” will automatically be removed after scanning unless you change the default setting. Removing or
disabling potentially unwanted software may result in
a. other software on your computer ceasing to work, or
b. your breaching a license to use other software on your computer.
By using this software, it is possible that you will also remove or disable software that is not potentially unwanted
software.
8. PRODUCT KEYS. The software requires a key to install or access it. You are responsible for the use of keys
assigned to you. You should not share the keys with third parties.
9. MULTIPLEXING. Hardware or software you use to
• pool connections,
• reroute information,
• reduce the number of devices or users that directly access or use the software,
• reduce the number of devices or users the software directly manages,
(sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses of any type that you
need.
10. MANDATORY ACTIVATION. Activation associates the use of the software with a specific device. During activation,
the software will send information about the software and the device to Microsoft. This information includes the
version, language and product key of the software, the Internet protocol address of the device, and information
derived from the hardware configuration of the device. For more information, see
go.microsoft.com/fwlink/?linkid=69497. By using the software, you consent to the transmission of this information.
Before you activate, you have the right to use the version of the software installed during the installation process.
Your right to use the software after the time specified in the installation process is limited unless it is activated. This is
to prevent its unlicensed use. You will not be able to continue using the software after that time if you do not activate
it. If the device is connected to the Internet, the software may automatically connect to Microsoft for activation. You
can also activate the software manually by Internet or telephone. If you do so, Internet and telephone service
charges may apply. Some changes to your computer components or the software may require you to reactivate the
software. The software will remind you to activate it until you do.
11. VALIDATION.
a. Validation verifies that the software has been activated and is properly licensed. It also verifies that no
unauthorized changes have been made to the validation, licensing, or activation functions of the software.
Validation may also check for certain malicious or unauthorized software related to such unauthorized changes. A
validation check confirming that you are properly licensed permits you to continue to use the software, certain
features of the software or to obtain additional benefits. You are not permitted to circumvent validation.
This is to prevent unlicensed use of the software. For more information, see
go.microsoft.com/fwlink/?Linkid=104610.
b. The software will from time to time perform a validation check of the software. The check may be initiated by
the software or Microsoft. To enable the activation function and validation checks, the software may from time to
time require updates or additional downloads of the validation, licensing or activation functions of the software.
The updates or downloads are required for the proper functioning of the software and may be downloaded and
installed without further notice to you. During or after a validation check, the software may send information
about the software, the computer and the results of the validation check to Microsoft. This information includes,
for example, the version and product key of the software, any unauthorized changes made to the validation,
licensing or activation functions of the software, any related malicious or unauthorized software found and the
Internet protocol address of the computer. Microsoft does not use the information to identify or contact you. By
using the software, you consent to the transmission of this information. For more information about validation
and what is sent during or after a validation check, see go.microsoft.com/fwlink/?Linkid=104611.
c. If, after a validation check, the software is found to be counterfeit, improperly licensed, a non-genuine Windows
product, or include unauthorized changes, the functionality and experience of using the software will be affected,
for example:
Microsoft may
• repair the software, remove, quarantine or disable any unauthorized changes that may interfere with the
proper use of the software, including circumvention of the activation or validation functions of the software,
or
• check and remove malicious or unauthorized software known to be related to such unauthorized changes, or
• provide notices that the software is improperly licensed or a non-genuine Windows product
and you may
• receive reminders to obtain a properly licensed copy of the software, or
• need to follow Microsoft’s instructions to be licensed to use the software and reactivate,
and you may not be able to
• use or continue to use the software or some of the features of the software, or
• obtain certain updates or upgrades from Microsoft
d. You may only obtain updates or upgrades for the software from Microsoft or authorized sources. For more
information on obtaining updates from authorized sources see go.microsoft.com/fwlink/?Linkid=104612.
12. INTERNET-BASED SERVICES. Microsoft provides Internet-based services with the software. It may change or
cancel them at any time.
a. Consent for Internet-Based Services. The software features described below connect to Microsoft or
service provider computer systems over the Internet. In some cases, you will not receive a separate notice
when they connect. You may switch off these features or not use them. For more information about these
features, see the software documentation. BY USING THESE FEATURES, YOU CONSENT TO THE
TRANSMISSION OF THIS INFORMATION. Microsoft does not use the information to identify or contact you.
Computer Information. The following features use Internet protocols, which send to the appropriate systems
computer information, such as your Internet protocol address, the type of operating system, browser and
name and version of the software you are using, and the language code of the device where you installed
the software. Microsoft uses this information to make the Internet-based services available to you.
• Windows Update Feature. You may connect new hardware to the device where you installed the software.
Your device may not have the drivers needed to communicate with that hardware. If so, the update feature
of the software can obtain the correct driver from Microsoft and install it on your device. You can switch off
this update feature.
• Web Content Features. Features in the software can retrieve related content from Microsoft and provide it to
you. Examples of these features are clip art, templates, online training, online assistance and Appshelp.
You may choose not to use these web content features.
• Digital Certificates. The software uses digital certificates. These digital certificates confirm the identity of
Internet users sending X.509 standard encrypted information. They also can be used to digitally sign files
and macros, to verify the integrity and origin of the file contents. The software retrieves certificates and
updates certificate revocation lists over the Internet, when available.
• Auto Root Update. The Auto Root Update feature updates the list of trusted certificate authorities. You can
switch off the Auto Root Update feature.
• Windows Media Digital Rights Management. Content owners use Windows Media digital rights management
technology (WMDRM) to protect their intellectual property, including copyrights. This software and third
party software use WMDRM to play and copy WMDRM-protected content. If the software fails to protect the
content, content owners may ask Microsoft to revoke the software’s ability to use WMDRM to play or copy
protected content. Revocation does not affect other content. When you download licenses for protected
content, you agree that Microsoft may include a revocation list with the licenses. Content owners may
require you to upgrade WMDRM to access their content. Microsoft software that includes WMDRM will ask
for your consent prior to the upgrade. If you decline an upgrade, you will not be able to access content that
requires the upgrade. You may switch off WMDRM features that access the Internet. When these features
are off, you can still play content for which you have a valid license.
• Windows Media Player. When you use Windows Media Player, it checks with Microsoft for
• compatible online music services in your region;
• new versions of the player; and
• codecs if your device does not have the correct ones for playing content.
You can switch off this last feature. For more information, go to
www.microsoft.com/windows/windowsmedia/mp10/privacy.aspx or
http://www.microsoft.com/windows/windowsmedia/player/11/privacy.aspx, depending on which version you
have installed.
• Windows Rights Management Services. The software contains a feature that allows you to create content
that cannot be printed, copied or sent to others without your permission. You must connect to Microsoft to
use this feature for the first time. Once a year, you must re-connect to Microsoft to update it. For more
information, go to http://go.microsoft.com/fwlink/?LinkId=52646. You may choose not to use this feature.
• Malicious Software Removal/Clean On Upgrade. Before installation of the software, it will check and remove
certain malicious software listed at www.support.microsoft.com/?kbid=890830 (“Malware”) from your device.
When the software checks your device for Malware, a report will be sent to Microsoft about any Malware
detected or errors that occurred while the software was checking for Malware. No information that can be used
to identify you is included in the report. You may disable the software’s Malware reporting functionality by
following the instructions found at www.support.microsoft.com/?kbid=890830.
• Network Awareness. This feature determines whether a system is connected to a network by either passive
monitoring of network traffic or active DNS or HTTP queries. The query only transfers standard TCP/IP or DNS
information for routing purposes. You can switch off the active query feature through a registry setting.
• Windows Time Service. This service synchronizes with time.windows.com once a week to provide your
computer with the correct time. You can turn this feature off or choose your preferred time source within the
Date and Time Control Panel applet. The connection uses standard NTP protocol.
• IPv6 Network Address Translation (NAT) Traversal service (Teredo). This software feature helps existing home
Internet gateway devices transition to IPv6. IPv6 is next generation Internet protocol. It helps enable end-to-
end connectivity often needed by peer-to-peer applications. To do so, each time you start up the software the
Teredo client service will attempt to locate a public Teredo Internet service. It does so by sending a query over
the Internet. This query only transfers standard Domain Name Service information to determine if the
computer is connected to the Internet and can locate a public Teredo service. If you
(1) use an application (e.g. Windows Meeting Space) that needs IPv6 connectivity or
(2) configure your firewall to always enable IPv6 connectivity
by default standard Internet Protocol information will be sent to the Teredo service at Microsoft at regular
intervals. No other information is sent to Microsoft. You can change this default to use non-Microsoft
servers. You can also switch off this feature using a command line utility named “netsh”.
b. Use of Information. Microsoft may use the computer information, accelerator information, search suggestions
information, error reports, and Malware reports to improve our software and services. We may also share it
with others, such as hardware and software vendors. They may use the information to improve how their
products run with Microsoft software.
c. Misuse of Internet-based Services. You may not use these services in any way that could harm them or
impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any
service, data, account or network by any means.
13. DATA STORAGE TECHNOLOGY. The software includes data storage technology called Windows Internal
Database. Components of the server software use this technology to store data. You may not otherwise use or
access this technology under this agreement.
14. FEEDBACK. If you give feedback about the software to Microsoft, you give to Microsoft, without charge, the right to
use, share and commercialize your feedback in any way and for any purpose. You also give to third parties, without
charge, any patent rights needed for their products, technologies and services to use or interface with any specific
parts of a Microsoft software or service that includes the feedback. You will not give feedback that is subject to a
license that requires Microsoft to license its software or documentation to third parties because we include your
feedback in them. These rights survive this agreement.
15. MICROSOFT WINDOWS SOFTWARE. The software contains the Microsoft .NET Framework, Powershell
software, and Microsoft Data Access Component software. This software is part of Windows.
16. BENCHMARK TESTING.
a. Server Software. You must obtain Microsoft’s prior written approval to disclose to a third party the results of
any benchmark test of server software (like SQL Server) or additional software that comes with it. This does not
apply to the .NET Framework (see below) or to the following products: Class Server, Live Communications
Server, MBS CRM 1.2, Microsoft Operations Manager, SharePoint Portal Server, System Center Data Protection
Manager, Systems Management Server, Virtual Server, Windows Server, Microsoft Services for Netware,
Windows Services for UNIX, Windows Small Business Server.
b. Microsoft .NET Framework Benchmark Testing. The software includes one or more components of the
.NET Framework 3.0 (“.NET Components”). You may conduct internal benchmark testing of those
components. You may disclose the results of any benchmark test of those components, provided that you
comply with the conditions set forth at http://go.microsoft.com/fwlink/?LinkID=66406. Notwithstanding any
other agreement you may have with Microsoft, if you disclose such benchmark test results, Microsoft shall have
the right to disclose the results of benchmark tests it conducts of your products that compete with the applicable
.NET Component, provided it complies with the same conditions set forth at
http://go.microsoft.com/fwlink/?LinkID=66406.
17. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the
software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you
may use the software only as expressly permitted in this agreement. In doing so, you must comply with any
technical limitations in the software that only allow you to use it in certain ways. For more information, see
www.microsoft.com/licensing/userights. You may not
• work around any technical limitations in the software;
• reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law
expressly permits, despite this limitation;
• make more copies of the software than specified in this agreement or allowed by applicable law, despite this
limitation;
• publish the software for others to copy;
• rent, lease or lend the software; or
• use the software for commercial software hosting services. For WebsiteSpark Web Pros,, certain software has
been approved for the provision of commercial hosting services and those rights are governed under a separate
agreement.
Rights to access the server software do not give you any right to implement Microsoft patents or other Microsoft
intellectual property in software or devices that access the server.
18. ALTERNATIVE VERSIONS. The software may include more than one version, such as 32-bit and 64-bit. For each
instance of the software that you are permitted to create, store and run, you may use either version.
19. BACKUP COPY. You may make one backup copy of the software. You may use it only to reinstall the software.
20. DOCUMENTATION. You may copy and use the documentation for your internal, reference purposes.
21. NOT FOR RESALE OR OTHER TRANSFER. You may not sell or otherwise transfer this software to anyone else.
22. GEOGRAPHIC RESTRICTIONS. If the software is marked as requiring activation in a specific geographic region,
then you are only permitted to activate this software in the geographic region indicated on the software packaging.
You may not be able to activate the software outside of that region. For further information on geographic
restrictions, visit go.microsoft.com/fwlink/?LinkId=141397.
23. DOWNGRADE. You may install and use this version and an earlier version of the software at the same time. This
agreement applies to your use of the earlier version. If the earlier version includes different components, any terms
for those components in the agreement that comes with the earlier version apply to your use of them. Microsoft is
not obligated to supply earlier versions to you.
24. NOTICE ABOUT THE MPEG-4 VISUAL STANDARD. This software includes MPEG-4 visual decoding technology.
This technology is a format for data compression of video information. MPEG LA, L.L.C. requires this notice:
USE OF THIS PRODUCT IN ANY MANNER THAT COMPLIES WITH THE MPEG 4 VISUAL STANDARD IS PROHIBITED,
EXCEPT FOR USE DIRECTLY RELATED TO (A) DATA OR INFORMATION (i) GENERATED BY AND OBTAINED
WITHOUT CHARGE FROM A CONSUMER NOT THEREBY ENGAGED IN A BUSINESS ENTERPRISE, AND (ii) FOR
PERSONAL USE ONLY; AND (B) OTHER USES SPECIFICALLY AND SEPARATELY LICENSED BY MPEG LA, L.L.C.
If you have questions about the MPEG-4 visual standard, please contact MPEG LA, L.L.C., 250 Steele Street, Suite
300, Denver, Colorado 80206; www.mpegla.com.
25. NOTICE ABOUT THE VC-1 VISUAL STANDARD. This software may include VC-1 visual decoding technology.
MPEG LA, L.L.C. requires this notice:
THIS PRODUCT IS LICENSED UNDER THE VC-1 PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL
USE OF A CONSUMER TO (A) ENCODE VIDEO IN COMPLIANCE WITH THE VC-1 STANDARD (“VC-1 VIDEO”) OR (B) DECODE
VC-1 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR
WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE VC-1 VIDEO. NO LICENSE IS GRANTED OR SHALL BE
IMPLIED FOR ANY OTHER USE.
If you have questions about the VC-1 visual standard, please contact MPEG LA, L.L.C., 250 Steele Street, Suite 300,
Denver, Colorado 80206; www.mpegla.com.
26. EXPORT RESTRICTIONS. The software is subject to United States export laws and regulations. You must comply
with all domestic and international export laws and regulations that apply to the software. These laws include
restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.
27. SUPPORT SERVICES. Because this software is “as is,” we may not provide support for it.
28. ENTIRE AGREEMENT. This agreement (including the warranty below), and the terms for supplements, updates,
Internet-based services and support services that you use, are the entire agreement for the software and support
services.
29. APPLICABLE LAW.
a. United States. If you acquired the software in the United States, Washington state law governs the
interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles.
The laws of the state where you live govern all other claims, including claims under state consumer protection
laws, unfair competition laws, and in tort.
b. Outside the United States. If you acquired the software in any other country, the laws of that country apply.
30. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your
state or country. You may also have rights with respect to the party from whom you acquired the software. This
agreement does not change your rights under the laws of your state or country if the laws of your state or country do
not permit it to do so.
31. DISCLAIMER OF WARRANTY. THE SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING
IT. MICROSOFT GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE
ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT
CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, MICROSOFT EXCLUDES THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT.
32. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CAN RECOVER FROM
MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER
ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR
INCIDENTAL DAMAGES.
This limitation applies to
• anything related to the software, services, content (including code) on third party Internet sites, or third party
programs; and
• claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort
to the extent permitted by applicable law.
It also applies even if Microsoft knew or should have known about the possibility of the damages. The above
limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of
incidental, consequential or other damages.
07.2009
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Microsoft Partner Network Agreement
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BY SCROLLING TO THE BOTTOM OF THIS AGREEMENT AND CLICKING THE “I
ACCEPT” BUTTON, COMPANY AGREES TO BE BOUND BY THIS AGREEMENT,
THE PROGRAM GUIDE, AND THE PROGRAM WEBSITE (INCLUDING ITS TERMS
OF USE AND PRIVACY STATEMENT), ALL OF WHICH ARE INCORPORATED
INTO AND FORM PART OF THIS AGREEMENT. COMPANY ALSO REPRESENTS
THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT. COMPANY MUST
ACCEPT THIS AGREEMENT BEFORE IT CAN PARTICIPATE IN THE MICROSOFT
PARTNER PROGRAM.
Microsoft Partner Program Agreement
Microsoft and Company agree to the following terms for Company’s participation in the
Microsoft Partner Program.
1. Scope. This program is designed to help technology companies deliver solutions based on
Microsoft technologies. Company’s participation in this program is voluntary. Nothing in this
Agreement restricts Company from supporting, promoting, distributing or using non-Microsoft
technology.
2. Definitions.
2.1 “Affiliate” means any legal entity that owns, is owned or is commonly owned by Microsoft
or Company. Own means holding or controlling more than 50% of the shares, interests or assets
of a legal entity.
2.2 “Agreement” means this Microsoft Partner Program agreement.
2.3 “Company” means the business entity, as identified in the signature block that has entered
into this Agreement.
2.4 “Location” means the Company affiliate(s) who has enrolled in the Program and associated
with the Company to share the Program benefits.
2.5 “Microsoft” means Microsoft Corporation (and its affiliates as appropriate).
2.6 “Microsoft Materials” means any Microsoft technology (including software), services,
information, materials and other benefits offered to Company through the Program.
2.7 “Program” means the Microsoft Partner Program.
2.8 “Program Member” means a business entity that meets the Program eligibility requirements
defined in the Program Guide.
2.9 “Program Guide” means the guide located on the Program Website and that is incorporated
into this Agreement. The Program Guide provides additional guidance about the Program and
Program requirements.
2.10 “Program Level(s)” means the level of Company’s participation in the Program. There are
three Program levels: (i) registered member , (ii) Certified, and (iii) Gold Certified. Program
levels and requirements are described more fully in the Program Guide.
2.11 “Program Website” means the website currently located at
https://www.partner.microsoft.com or equivalent local site, or a successor site designated by
Microsoft. The Program Website provides tools and information about the Program, including the
Program Guide.
2.12 “Services” means support, consulting and other services or advice, including any resulting
services deliverables, provided through the Program or through other services offerings.
3. Program.
3.1 Enrollment. After Company accepts this Agreement and pays a membership fee where
applicable, Microsoft will advise Company of its acceptance and Company’s enrollment.
3.2 Partner points. The Program Guide explains how to accumulate partner points. Company
may qualify for a Program Level by accumulating the required number of points. Microsoft will
notify Company of the Program Level for which Company qualifies based on Company’s
accumulated partner points.
3.3 Competency. A competency is a Program recognition given to partners for specific areas of
expertise. The Program Guide explains the various competencies and associated requirements.
3.4 Program Fees.
a. Registered members are not required to pay a Program fee. If Company qualifies and enrolls
at a Certified or Gold Certified level, Company agrees to pay Microsoft the annual Program fee
and other applicable benefit fees.
b. In some countries, like India, the Program fee is for the price of the welcome kit. In these
countries, a Microsoft-designated distributor invoices the Company for the welcome kit and
sends the kit once invoice is paid. Price is an estimated price and is subject to variations, such as
foreign exchange rates. When Company sends its payment for the welcome kit, Company must
also include a signed, hard copy of this Agreement.
3.5 Program administration. Microsoft will administer the Program and related benefits through
the Program Website and Program communications. Microsoft may communicate with Company
for the following purposes: administering the program, providing information to Company about
the Program, including events and training opportunities, inviting Company to participate in
surveys and research, and providing Company with information and materials to support its
efforts to deliver solutions based on Microsoft technologies, including security information,
technical information, and sales and marketing materials and resources.
3.6 Program changes.
a. Microsoft has the right to change or discontinue the Program or any aspect of it. Microsoft
will give Company 30 days email or written notice of any substantive Program change.
However, Microsoft will give Company 60 days email or written notice if Microsoft intends to
discontinue the Program. These notices will be sent to the email or address provided by
Company in their Program profile.
b. For all other changes, Company is responsible for checking the Program Website regularly.
Company will be bound by Program Website changes as of the date the changes are posted, but
the changes will not apply retroactively.
3.7 Advertising and publicity. Microsoft will ask Company’s permission if Microsoft plans to
use Company’s name, corporate logos, or identity in advertisements or promotions relating to the
Program. Company agrees not to unreasonably withhold or delay its permission. If Microsoft
does not receive Company’s response within 30 days, lack of response will signify that Company
has granted its permission.
4 Program Benefits.
4.1 Company will receive certain benefits under the Program as described in the Program Guide
and Program Website. Benefits may vary by Program Level, competency, and by country.
Benefits may include sales, marketing, training, technology, services, technology development
programs, and the ability to purchase, use and distribute Microsoft course materials (“Microsoft
Course Materials”). In some countries, India for example, the welcome kit is the benefit for
which the program fee is charged, and may be supplied to Company by a Microsoft designated
distributor.
4.2 Program benefits may require additional fees, and may have additional terms, conditions,
and licenses associated with them. Before using any Program benefit, including Microsoft
technology, Company must accept the additional terms. Company’s use of Program benefits
implies its acceptance of the additional terms, if any, and Company’s use will be in accordance
with those additional terms and this Agreement. If Company does not agree, Company is not
authorized to use the Program benefit(s). In addition to the license terms accompanying the
Microsoft Course Materials, Company may only use the Microsoft Course Materials in
accordance with the licensed terms accompanying them and as otherwise detailed in the Program
Guide and/or the Program Website
4.3 Company’s Affiliates may participate in the Program as a Location for the purpose of
pooling partner points or sharing benefits.
4.4 Services benefits.
a. Company’s right to use Services offered under the Program may be governed by a separate
agreement. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND
YOUR CURRENT SERVICES AGREEMENT WITH MICROSOFT (IF ANY), THE TERMS
AND CONDITIONS OF YOUR CURRENT SERVICES AGREEMENT WITH
MICROSOFT CONTROL.
b. Delivery of Services depends on Company’s full and timely cooperation, as well as the
accuracy and completeness of any information Company provides.
c. Microsoft may offer Services for new software or discontinue Services for existing
software. Microsoft’s current lifecycle policies are posted at
www.support.microsoft.com/lifecycle. There may be cases where Microsoft cannot effectively
provide Services and will notify Company in such cases.
d. Ownership and license of Services deliverables.
(i) Fixes. “Fixes” means software fixes that Microsoft either releases generally (such as
commercial service packs) or that Microsoft or its designee provides to Company when
performing Services (such as workarounds, patches, bug fixes, beta fixes and beta builds) and
any derivatives of such Fixes. Microsoft grants Company a non-exclusive, perpetual, fully paid-
up license to use and reproduce any Fix that Microsoft or its designee delivers to Company for its
internal business operations only. Microsoft also grants Company the right to grant its customer
(that Company specifically identifies in writing to Microsoft), a non-exclusive, perpetual, fully
paid-up license to use and reproduce the identified Fix that Microsoft specifically creates (or
which is not otherwise publicly available) and delivers to Company. The license rights granted
for Fixes are limited to the internal business operations of the individual customer identified by
Company and are not intended for broader redistribution. Except as otherwise provided herein,
the license rights granted for Fixes are governed by the license agreement for the affected
software or, if the Fix is not provided for a specific software, any other use terms Microsoft
provides. Company is responsible for paying any software licensing fees. Company and its
customer may not modify, reverse engineer, decompile, disassemble, change the file name of or
combine with any non-Microsoft computer code any Fixes delivered to Company.
(ii) Pre-Existing Work. All rights in any computer code or non-code based written materials
(“Materials”) developed or otherwise obtained by or for Microsoft or its affiliates, or Company or
its affiliates independent of this Agreement (“Pre-existing Work”) shall remain the sole property
of the party providing the Pre-existing Work. During the performance of the Services, each party
grants to the other party (and their respective contractors as necessary) a temporary, non-
exclusive license to use, reproduce and modify any of its Pre-existing Work provided solely for
the performance of Services. Microsoft grants Company a non-exclusive, perpetual, fully paid-up
license to use, reproduce and modify (if applicable) its Pre-existing Work in the form delivered to
Company that Microsoft leaves with Company at the conclusion of its performance of Services
for use with any developments (if applicable). Microsoft also grants Company the right to
distribute and grant to its customers a non-exclusive, perpetual, fully paid-up license to use,
reproduce and modify (if applicable) Microsoft’s Pre-existing Work in the form delivered to
Company at the conclusion of Microsoft’s performance of Services for use with any
developments (if applicable). The license rights granted to Microsoft’s Pre-existing Work are
limited to Company and its customer’s internal business operations and are not for its customer’s
resale or distribution to unaffiliated third-parties.
(iii) Developments. Microsoft grants Company a non-exclusive, perpetual right to use,
reproduce and modify any computer code or Materials (except for Fixes or Pre-existing Work)
that Microsoft leaves with Company at the conclusion of Microsoft’s performance of the
Services (“Developments”) for Company’s internal business operations only. Microsoft also
grants Company the right to distribute and grant to its customer a non-exclusive, perpetual right
to use, reproduce and modify any Materials (except for Fixes or Pre-existing Work) that
Microsoft leaves with Company at the conclusion of its performance of the Services for internal
business operations only. Developments are not for resale or distribution to unaffiliated third
parties by Company’s customer.
(iv) Redistribution Indemnification and Additional Restrictions. Company’s right to distribute
Fixes, Materials, Pre-existing Work and developments to its customer is contingent on
Company’s agreement to pass equivalent terms on to its customer, indemnify and hold Microsoft
harmless, and defend Microsoft and its suppliers from and against any claims or lawsuits,
including attorneys’ fees or legal costs that arise or result from (1) Company’s customer’s use, (2)
Company’s negligent or willfully wrongful acts associated with distribution or marketing, and (3)
any additions or modifications Company makes.
(v) Open Source License Restrictions. Because certain third party license terms require that
computer code be generally (1) disclosed in source code form to third parties; (2) licensed to
third parties for the purpose of making derivative works; or (3) redistributable to third parties at
no charge (collectively, “open source license terms”), the license rights that each party has
granted to any computer code (or any intellectual property associated therewith) do not include
any license, right, power or authority to incorporate, modify, combine and/or distribute that
computer code with any other computer code in a manner which would subject the other’s
computer code to open source license terms.
Furthermore, each party warrants that it will not provide or give to the other party computer code
that is governed by open source license terms.
(vi) Affiliates Rights. Company may sublicense the rights contained in this section to its
affiliates, but Company’s affiliates may not sub-license these rights and Company’s affiliates’ use
must be consistent with these license terms.
4.5 Software Benefits.
a. Company’s right to use Microsoft software offered to Company under the Program may be
governed by a separate agreement or other use terms for the applicable software. IN THE
EVENT OF A CONFLICT BETWEEN THIS SECTION 4.5 AND ANY SEPARATE AGREEMENT OR
OTHER USE TERMS FOR THE APPLICABLE SOFTWARE, THE TERMS AND CONDITIONS OF
THIS SECTION 4.5 WILL CONTROL.
b. Company 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 or other
Microsoft Materials and Company must not otherwise infringe any of Microsoft’s intellectual
property rights. Company must reasonably cooperate with Microsoft and its affiliates in the
investigation of counterfeit, pirated, unlicensed or illegal software and other Microsoft materials.
As soon as Company becomes aware, Company must report to Microsoft any suspected
counterfeiting, piracy or other copyright infringement in computer programs, manuals, course
material, marketing materials or other copyrighted materials owned by Microsoft and/or its
licensors.
c. The software licenses that Company receives under the Program may not be resold, transferred, or
used except as expressly provided in this Agreement (see the Program Guide and Program
Website for more details). Company must acquire a sufficient number of Microsoft software
licenses through the Program and/or applicable Microsoft licensing programs to match (1) the
quantities of the Microsoft software Company uses and (2) the maximum number of users and/or
devices that may access or use the Microsoft software under Company’s agreements with
Microsoft or a reseller. In addition, Microsoft may collect data from the Windows Genuine
Advantage, Office Genuine Advantage and other similar programs to ensure that Company does
not use or activate more software than authorized by this Agreement (see the Program Guide for
more details). As detailed in Section 7, Verifying Compliance, of this Agreement, Microsoft may
conduct audits to ensure Company’s compliance with all terms of this Agreement. To ensure
compliance with this subsection, Microsoft may also (i) otherwise contact Company and (ii) take
action to ensure that Company does not use more software than authorized by this Agreement.
d. The benefits Company receives under the Program, including software, are not intended for
distribution to Company’s customers. Company’s customers must acquire a sufficient number of
Microsoft licenses to match (a) the quantities of the licensed software Company may provide to
its customers under a separate agreement, and (b) the maximum number of users and/or devices
that may access or use the licensed software under the customer’s license agreement with
Company or Microsoft. Company will inform Microsoft (1) of any known or suspected failure by
a customer to possess sufficient numbers of Microsoft licenses, and (2) any known or
suspected violations by a customer of any Microsoft license agreement.
e. Any software licenses that Company receives under the Program will be valid for the Term of this
Agreement only.
5. Lead Generation and Privacy
Microsoft may provide benefits to assist Company with sales lead generation and support in the form of
access to information, tools, templates and reports (e.g., the Partner Sales Management
system). In particular, at times Microsoft may share leads with Company containing Personal
Information of customers. “Personal Information” includes any information that permits an
individual to be identified or contacted (such as name, postal address, e-mail address, phone
number, fax number, financial information or account numbers, or any government-issued ID
numbers). Personal Information relating to Microsoft-generated leads provided to Company
must only be used by Company and Company vendors for the purpose of facilitating Company
sale of the particular product or service or sets of products and/or services of interest to the
customer. Company must not use or share any Personal Information relating to Microsoft-
generated leads for any other purpose unless Company obtains the appropriate consent of the
customer. Company will also take reasonable security measures to protect Personal Information
Microsoft provides Company 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. At Company’s sole discretion,
Company may decide to share leads with Microsoft to allow Microsoft to facilitate Company’s
promotion and sale of Microsoft products and services. Company represents and warrants that
if Company chooses to share Company leads with Microsoft, Company will comply with any
applicable laws to provide notices to or obtain permissions from any leads to share their
Personal Information with Microsoft for the purpose of allowing Microsoft to facilitate the
promotion and sale of Microsoft products and services.
6. Trademarks.
6.1 Limited trademark license. The “Microsoft Marks” include those trademarks, logos,
symbols, and names that are identified in the Microsoft logo guidelines on the Program Website
and the Partner Logo Builder. The Microsoft Marks are available to Company only if Company
meets the criteria to use them. The criteria are explained on the Program Website. As long as
Company meets the criteria, Microsoft grants to Company a non-exclusive, non-transferable,
limited, royalty-free license to use the applicable Microsoft Marks. Company acknowledges and
agrees that:
a. Microsoft is the sole owner of the Microsoft Marks and the sole beneficiary of the goodwill
associated with Company’s use of the Microsoft Marks.
b. Company will not acquire any right, title or interest in the Microsoft Marks because of
Company’s use of the Microsoft Marks.
c. Company will not register, adopt or use any name, trademark, domain name or other
designation that includes all or part of any Microsoft Mark, or any term that is confusingly similar
to a Microsoft Mark, or a translation or transliteration of a Microsoft Mark.
d. Company may use the Microsoft Marks only in connection with Microsoft Materials:
§ In the form provided by Microsoft;
§ For program advertising and promotion activities; and
§ In accordance with the terms of this Agreement and the Program Guide.
e. Company may not alter, animate or distort the Microsoft Marks nor combine them with any
other symbols, words, images or design elements.
f. Company 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 Microsoft policies published on http://microsoft.com
or through the Program.
g. Company must maintain the quality of the solutions and services Company offers in relation
to the Microsoft Marks and the Microsoft Materials at a level commensurate with the quality of
services Company offered before the date of this Agreement. The quality of Company solutions
and services must also meet or exceed standards of quality and performance generally accepted
in the industry.
h. Company agrees to correct any improper use of the Microsoft Marks and deficiencies in the
quality of its solutions and services within a reasonable time upon receipt of notice from
Microsoft.
6.2 Referential use of trademarks. Company may use Microsoft’s 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 Company’s solutions and services or
Company’s relationship with Microsoft.
6.3 Notices. Company must not remove any copyright, trademark or patent notices contained in
or on any Microsoft materials. Company must include Microsoft’s 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. Company must use the
appropriate trademark, licensed Microsoft technology descriptor and trademark symbol (either
“™” or “®”), and clearly indicate Microsoft’s (or Microsoft 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. Microsoft’s trademark usage guidelines are located at
http://www.microsoft.com/about/legal/intellectualproperty/trademarks/usage/default.mspx.
6.4 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. Company will not hold itself out as Microsoft’s technology recipient and
will not attempt to identify Microsoft as a technology provider under this Agreement.
6.5 Reservation of rights. Microsoft reserves all rights not expressly granted in this Agreement.
7. Verifying compliance. Company must keep all usual and proper books and records relating
to its performance of this Agreement. This standard takes into account the accounting rules,
regulations, authoritative pronouncements, principles and practices accepted in Company’s
jurisdiction. At a minimum, Company must keep documents related to acquisition, delivery and
destruction of licensed software and hardware, including (a) software delivered as part of the
Microsoft Action Pack Subscriptions and (b) Microsoft Volume License Keys that Microsoft
authorizes Company to use under this Agreement. Company must keep these documents during
the term, and for 3 years after this Agreement ends. During this same period, Microsoft may
designate a third party auditor at its sole discretion to conduct audits of Company’s applicable
books, records, operations, processes and facilities during any selected period to verify
Company’s compliance with the terms of this Agreement, as described further in the guide. The
sole purpose of such audit is to verify Company’s compliance with the terms of this Agreement.
Except for audits related to counterfeit software and hardware, Microsoft will give Company 48
hours’ notice of the audit. Audits related to counterfeit software and hardware do not require
prior notice. Company will promptly correct any errors and omissions disclosed by the audits.
Microsoft reserve the right to validate all customer references supplied by Company in
accordance with the Program requirements. In addition, if the Company is using Microsoft
Course Materials, Microsoft and/or a designated representative may audit Company’s delivery of
training using Microsoft Course Materials (“Microsoft Courses”) without notice. Such audits may
include a formal written critique of Company’s trainers’ software and technical knowledge and
delivery skills, and/or a review of the equipment, facilities, student rosters for Microsoft Courses
taught, Course Materials provided to students, and Course Materials inventory. If Microsoft
determines in its business judgment that (a) Company is not delivering Microsoft Courses in a
professional manner, (b) Company is not providing an effective learning environment and/or
experience, (c) the facilities and equipment are not sufficient for quality training to occur; or
d) Course Materials acquisitions do not match the total of students trained in Microsoft Courses,
Microsoft Courses taught and current Course Materials inventory, then Microsoft will
immediately notify Company in writing and may terminate this Agreement if not cured in
accordance with section 9.3 (Termination for Cause) of this Agreement and/or Company’s
Learning Solutions competency status.
Any audit will be conducted during Company’s normal business hours and in a manner that does
not interfere unreasonably with Company’s normal business activities. Company will provide
Microsoft with access to all applicable books, records, operations, processes and facilities that
Microsoft may need to review to complete a proper and thorough audit as described above. If an
audit is conducted with notice, Company will have all applicable books, records and operations
available to Microsoft at the beginning of the audit. Company will pay Microsoft the costs for
the audit if an audit uncovers a terminable breach of this Agreement as defined in the
Termination for Cause section or a discrepancy of 2% or more in Company’s use of license
benefits during the applicable audit period. If the audit team makes any commercially reasonable
recommendations to Company on record keeping with regard to compliance with the terms of
this Agreement, Company will implement the recommendations within a mutually agreeable
timeframe.
8. Program limitations, warranty, indemnification, and disclaimers and limitations of
liability.
8.1 Program Limitations and Warranty. Microsoft warrants that it will use reasonable care and
skill to administer the Program. Company’s effort and resulting performance in the Program are
completely under Company’s control. Microsoft does not guarantee Company’s satisfaction with
the Program or Company results. Except for loss and damage which cannot be limited or
excluded under applicable law, (a) the Microsoft materials provided to Company are “AS IS,”
and are provided without warranties of any kind, and (b) Microsoft disclaims on its own behalf
and on behalf of its affiliates and suppliers all other representations, warranties, and
conditions whether express, implied or statutory. This limitation includes, but is not limited
to, title, non-infringement, merchantability, satisfactory condition or quality,
merchantability, 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. Company must defend, indemnify and hold Microsoft harmless from any
third-party claims, including, without limitation, reasonable attorney’s fees, arising from
Company’s acts or omissions (including those of its agents) relating to Company’s performance
under this Agreement. This limited warranty gives specific legal rights. Company and Microsoft
may have other rights, which vary by jurisdiction.
8.2 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 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).
Notwithstanding, this section does not apply in the case of fraud, gross
negligence, intentional misconduct, death or personal injury caused by
negligence, or to breaches of intellectual property rights, indemnification or
confidentiality provisions of this Agreement. This section is enforceable to the
maximum extent permitted by law. Company and Microsoft 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 Company to Microsoft, 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.
8.3 Business purposes. Company confirms that it is entering this Agreement, and
acquiring the Services and Program materials under it, for business purposes only.
Company agrees 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.
8.4 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 applicable law gives Company any implied
terms, despite the exclusions and limitations in this Agreement, then to the extent permitted by
applicable law, Company’s remedies are limited as determined by Microsoft, in the case of
Services to either (a) re-supply of the Services or (b) the cost of the re-supply of the Services (if
any), and in the case of goods to either (1) replacement of the goods or (2) correction of defects
in the goods.
9. Term and Termination
9.1 Term. This Agreement will take effect on the date Microsoft accepts this Agreement
(“Effective Date”) and will continue for one year from the Effective Date (“Term”), unless
terminated earlier. If Company upgrades from registered member status during the Term, its
Effective Date will change to the date Microsoft accepts the upgrade. An upgrade from certified
to gold certified partner status will not change Company’s Effective Date. Upon expiration of
the Term, if Company chooses to reenroll in the program, Company must do so on the Program
Website. This Agreement will not renew automatically and Microsoft may choose not to renew
Company’s membership in the Program.
9.2 Termination Without Cause. Either party may terminate this Agreement at any time, without
cause, upon 60 calendar days’ notice. Neither party will be responsible to the other for any costs
or damages that are a direct result of this termination.
9.3 Termination for Cause. If either party breaches any provision of this Agreement, and the
cause for termination is considered curable, the non-breaching party will give 30 calendar days’
email or written notice and an opportunity to cure. If the cause for termination is considered not
curable, termination will take effect immediately upon notice from the non-breaching party.
Microsoft retains its other rights and remedies.
9.4 Statutory Form. If Microsoft is required to use a statutory form, Microsoft reserves the right
to either terminate or vary this Agreement without its use and without any liability to Company.
9.5 Effect of Termination. When this Agreement terminates, Company must immediately stop
using any rights and benefits granted by this Agreement and the Program. Company must also
destroy all Microsoft Materials. Within 10 days of termination and at Microsoft’s sole discretion,
Company will do one of the following:
• return all copies of documents and materials containing customer information Company
received as a result of this Agreement together with all Microsoft Materials and property in
Company’s possession or under its control, or
• destroy all such specified documents and Microsoft Materials (including any and all
copies) and provide Microsoft with a certificate of destruction signed by an officer of the
Company.
Termination of this Agreement will not, by itself, result in the termination of any unresolved
request for 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.
9.6 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.
9.7 Survival. Sections 7, 8, 9.7, 11, 12, 13, 14, and 15 will survive the expiration or termination
of this agreement.
10. Compliance with laws.
10.1 Export restrictions. Any software Company receives as a benefit of the program is subject to
U.S. export laws and regulations. Company must comply with all domestic and international
export laws and regulations that apply to the licensed software Company receives as a benefit of
the Program. The laws include restrictions on destinations, end-users and end use. For additional
information, see http://www.microsoft.com/exporting/.
10.2 Compliance with laws and Anti-Corruption Policy. Company will comply with all
applicable laws including but not limited to local anti-corruption laws and the U.S. Foreign
Corrupt Practices Act (“Anti-Corruption Laws”). If Microsoft has a good faith reason to
believe Company or its representatives are in violation of the Anti-Corruption Laws, Microsoft
can have a third-party auditor (i) investigate the suspected violations (“Anti-Corruption Audit”)
and (ii) report its Anti-Corruption Audit findings solely to Microsoft. Company agrees to fully
participate and assist in any Anti-Corruption Audit and to make all books, records and employees
promptly available to assist the third-party auditor. Failure to comply with the terms of this
provision or this Agreement may, in Microsoft’s sole discretion, result in termination of this
Agreement. Microsoft will not be liable for damages resulting from such termination.
11. Taxes.
11.1 Taxation. The amounts to be paid to Microsoft 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, Company must pay to
Microsoft any applicable value added, goods and services, sales or use taxes or like taxes that are
owed by Company solely as a result of entering into this Agreement and which are permitted to
be collected from Company by Microsoft under applicable law. Company may provide a valid
exemption certificate to Microsoft in which case Microsoft will not collect the taxes covered by
such certificate. Microsoft is not liable for any of Company’s taxes that Company is 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 Company’s financial
responsibility. Company must indemnify, defend and hold Microsoft harmless from these taxes
(including sales or use taxes Company pays Microsoft), claims, costs (including legal fees)
relating to these taxes. For the avoidance of doubt, these taxes do not include taxes that
Microsoft is obligated to pay under applicable law based on the net worth, capital, property, or
income of Microsoft.
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 Company to Microsoft,
Company may deduct such taxes from the amount owed to Microsoft and pay them to the
appropriate taxing authority; Company must promptly secure and deliver to Microsoft an official
receipt for any such taxes withheld or other documents necessary to enable Microsoft to claim a
U.S. Foreign Tax Credit. Company will make certain that any taxes withheld are minimized to
the extent possible under applicable law.
11.2 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.
12. Confidentiality
If Company has a valid standard non-disclosure agreement with Microsoft (“NDA”), its terms
will govern use of Confidential Information (as defined in the NDA) exchanged during
Company’s participation in the Program. Otherwise, the below Confidentiality terms will apply.
Each party agrees not to use or disclose the other’s Confidential Information except as necessary
to further the purposes of the Agreement. Each party agrees to take reasonable steps to protect
that information, to return it or destroy it upon request, and to cooperate with one another if a
disclosure occurs. Each party also agrees that if either party gives the other party feedback about
the other’s products or services, that feedback is not confidential.
12.1 Definition of Confidential Information. “Confidential Information” means information
marked or otherwise identified in writing by a party as proprietary or confidential, or information
that, under the circumstances surrounding the disclosure, the receiving party reasonably should
recognize as being confidential. It includes non-public information regarding either party’s
products or customers, marketing and promotions, and the negotiated terms of Microsoft
agreements.
12.2 Information not considered confidential. Confidential Information does not include
information which:
a. the recipient developed independently;
b. the recipient knew before receiving it from the other party; or
c. is or subsequently becomes publicly available or is received from another source, in both
cases other than by a breach of an obligation of confidentiality.
12.3 Use of Confidential Information. For a period of five (5) years after initial disclosure,
neither party will:
a. use the other’s Confidential Information without the other’s written consent, except in
furtherance of this business relationship or as expressly permitted by this Agreement; or
b disclose the other’s Confidential Information, except to obtain advice from legal or financial
consultants, or if compelled by law, in which case the party compelled to make the disclosure will
use its best efforts to give the other party notice of the requirement so that the disclosure can be
contested.
12.4 Protection of Confidential Information. Each party will take reasonable precautions to
safeguard the other party’s Confidential Information. Those precautions will be at least as great
as the precautions that the other party takes to protect its own Confidential Information. Each
party will disclose the other’s Confidential Information to its employees, consultants or
subcontractors only on a need-to-know basis and subject to the confidentiality obligations
imposed here. When Confidential Information is no longer necessary to perform any obligation
under this Agreement, each party will return it to the other party or destroy it at the other’s
request.
12.5 Cooperation in the event of disclosure. Each party will immediately notify the other party
upon discovery of any unauthorized use or disclosure of Confidential Information, and will help
the other party regain possession of the Confidential Information and prevent further
unauthorized use or disclosure.
12.6 Right to use feedback. If one party provides suggestions for changes or improvements, or
other feedback, to the other party about the other party’s products or services, the party receiving
the feedback may use it for any purpose without obligation of any kind, except that the receiving
party will not disclose the source of feedback without the consent of the party providing it.
13. General.
13.1 Entire agreement. The terms and conditions of this Agreement, the Program Guide, and the
Partner Website form the entire agreement between Microsoft and Company concerning the
Program and supersede any prior or contemporaneous communications, and any prior agreement
between Microsoft and Company or its affiliates relating to the Program. Except as expressly
provided herein, this Agreement can only be changed by an amendment signed by both parties,
except that Microsoft may change the Program Guide with respect to program administration,
policies, procedures, guidelines, benefits and similar changes. Company is responsible for (a)
communicating the terms of this Agreement to its employees and contractors, and (b) ensuring
their compliance with the terms of this Agreement.
13.2 Notices. All notices and requests in connection with this Agreement must be sent to the
named contact person and the address Company provides Microsoft in its Program profile. For
notices and requests to Microsoft, see the Program Website. Notices are considered delivered on
the date shown on the confirmation of delivery, including the date of publication to the Program
Website. Company will give Microsoft prompt notice if Company or its affiliates become
insolvent or enter insolvency, bankruptcy or other similar proceedings under applicable laws.
13.3 Assignment. Either party may assign this Agreement at any time to an Affiliate; 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.
13.4 Relationship between Company and Microsoft. Even though Microsoft may call Company
a ”partner”, Company is an independent contractor for all purposes regarding this Agreement and
its provisions. At no time does Company have the power to (a) bind Microsoft, (b) vary any
terms, conditions, warranties, or covenants made by Microsoft, or (c) create in favor of any
person any rights that Microsoft has 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 Company and Microsoft.
13.5 Language. Microsoft offers this Agreement in several languages. The language version in
which Company accepts this Agreement will control. If Company is located in Canada, the
parties agree that this Agreement, and any associated Program documentation, be written and
signed in English. C’est la volonté expresse des parties que la présente convention ainsi que les
documents qui s’y rattachent soient rédigés en anglais.
13.6 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 Microsoft will
amend this Agreement to give effect to the stricken clause to the maximum extent possible.
13.7 Waiver. No waiver of any breach of this Agreement will be a waiver of any other breach,
and any waiver must be in writing and signed by an authorized representative of the waiving
party.
13.8 No representations. Microsoft has not made any representation to Company about Microsoft
materials on which Company has relied in deciding to acquire them or to enter into this
Agreement. Company warrants that it has relied on its own skill and judgment or that of
Company’s advisers in relation to these matters. However, neither party limits or excludes
liability for fraudulent misrepresentations.
13.9 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 the Program Benefits section, the
additional or separate terms will prevail.
14. Microsoft Contracting Entity. The Microsoft contracting entity for this Agreement is
determined by the country/region Company is located in as detailed below:
14.1 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
14.2 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, Libya, Macedonia, Madagascar, Malawi, Mali,
Malta, Mauritania, Mauritius, Moldova, Monaco, Mongolia, Montenegro, 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, Serbia, 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
14.3 The Microsoft entity for the following countries/regions is indicated below: 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, 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
14.4 The Microsoft entity for Japan is:
Microsoft Company, Limited
Odakyu Southern Tower
2-1, Yoyogi 2-chome, Shibuya-ku, Tokyo
151-8583 Japan
14.5 The Microsoft entity for Taiwan is:
Microsoft Taiwan Corporation
8F, No 7, Sungren Rd.
Shinyi Chiu, Taipei
Taiwan 110
14.6 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.
14.7 The Microsoft entity for the Republic of Korea is:
Microsoft Korea, Inc.
5th Floor West Wing, POSCO Center
892, Daechi-Dong, Gangnam-Gu,
Seoul 135-777, Korea
15. 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.
15.1 Generally. Except as provided in section 15.2 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. Company waives all defenses of
lack of personal jurisdiction and forum non conveniens.
15.2 Other Terms. If Company’s principal place of business is in one of the countries or
regions listed below, the corresponding provision applies, which supersedes section
15.1 to the extent that it is inconsistent:
a. If Company’s 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 Company’s principal place of business is in Australia or its external territories, Malaysia, New
Zealand or Singapore, Company consents to the non-exclusive jurisdiction of the Singapore
courts.
If Company’s 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 Agreement.
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 Company’s principal place of business is in Japan, the following applies:
The Agreement shall be construed and controlled by the laws of Japan, and Company
consents 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 Company’s 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, Kosovo, Kuwait,
Kyrgyzstan, Latvia, Lebanon, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg,
Libya, Macedonia, Madagascar, Malawi, Mali, Malta, Mauritania, Mauritius, Moldova,
Monaco, Mongolia, Montenegro, 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, Serbia, 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:
The Agreement is governed by and construed in accordance with the laws of Ireland and
Company consents to the jurisdiction of and venue in the Irish courts in all disputes
arising out of or relating to this Agreement.
d. If Company’s 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., Macao S.A.R., or Taiwan), the following applies:
The Agreement shall be construed and controlled by the laws of the People’s Republic
of China, and Company consents to submit any dispute arising out of or in relation to the
Agreement and any 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 Company’s 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 presently 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 Company’s principal place of business is in Republic of Korea, the following
applies:
The Agreement shall be construed and controlled by the laws of Republic of Korea, and
Company consents to the 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 Company’s 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.
