HomeMy WebLinkAboutAmendmentFor Microsoft Internal
Purposes
Master Agreement Number
AMENDMENT
TO
MICROSOFT EDUCATION SELECT MASTER AGREEMENT
This amends the Microsoft Education Select Master Agreement between
[ and MSLI, LLC. All terms used but not defined in this amendment will
have the meanings assigned to such terms in the Education Agreement, as amended.
X. Amendment,
1. Section I3b of the Terms and Conditions, Year 2000 warranty, is deleted and restated to read in its
entirety as follows:
Year 2000 Compliance Warranty. For purposes of this Year 2000 warranty, the team "Product shall
include software, firmware, microcode, hardware and embedded chip technology.
Vendor warrants that the Product is Year 2000 Compliant. All versions of the Product offered by
the vendor and purchased by the State, for which Vendor is obligated to provide maintenance service
are, and in the future, will be, Year 2000 Compliant. Year 2000 Compliant means the Product will
include the ability to: consistently handle date information before, during, and after January 1, 2000,
including accepting date input providing date output, and processing dates; function before, during and
after January 1, 2000, without the need for program changes caused by the advent of the new century;
properly handle all date related information before and following Jan 1, 2001, including but not limited
to accurate and reliable performance in processing date and date related data, including calculating,
comparing and sequencing; properly process any and all date calculations before, on and after the leap
year date of February 29, 2000 and store and provide output of date information in ways that are
unambiguous as to century.
The duration of this warranty and the remedies available to the State for breach of this warranty
shall be as defined in, and subject to, the terms and limitations of any general warranty provisions of
this contract, provided that notwithstanding any provision tot he contrary in such warranty
provision(s), or in the absence of any such warranty provision(s), defects in the Product with regard to
Year 2000 Compliance, if any, will be corrected by Vendor at Vendor's cost within a timeframe
mutually agreed upon with the State. Vendor cannot be held responsible for errors resulting from
devices or systems external to this contract which are permitted to directly access any database
provided under this Agreement and overwrite Product date fields or from the users improper
integration of non -Year 2000 Compliant systems. Nothing in this warranty shall be construed to limit
any rights or remedies the State may otherwise have under this contract with respect to defects other
than Year 2000 performance.
10
Year 2000 Compliance (Software)
The licensor represents and warrants that the software, which is licensed to licensee hereunder, is
designed to be used prior to, during, and after the calendar year 2000 AD, and that the software will
operate during each such time period without error relating to date data, specifically including any
error relating to, or the product of, date data which represents or references different centuries or more
than one century. Without limiting the generality of the foregoing, Licensor further represents and
warrants (1) that the software will not abnormally end or provide invalid or incorrect results as a result
of date data, specifically including date data which represents of references different centuries or more
than one century; (2) that the software has been designed to ensure year 2000 compatibility, including,
but not limited to, date data century recognition, calculations which accommodate same century and
multi -century formulas and date values, and date data interface values that reflect the century; (3) that
the software included "year 2000 capabilities", which means the software (a) will manage and
manipulate data involving dates, including single century formulas and multi -century formulas, and
will not cause an abnormally ending scenario within the application or generate incorrect values or
invalid results involving such dates; and (b) provides that all date -related user interface functionalities
and data fields include the indication of century; and (c) provided that all date -related data interface
functionalities include the indication of century.
Year 2000 Remedy Clause
In the event of any decrease in product functionality related to time and date related codes and
internal subroutines that impede the hardware or software programs from operating beyond the
Millennium Date Change, Licensors and Vendors of Licensors products, agree to immediately make
required corrections to restore hardware and software programs to the same level of functionality as
warranted herein at no charge to the licensee, and without interruption to the ongoing business of
licensee, time being of the essence.
2. Section 17d of the Terms and Conditions, Applicable Law, is hereby amended and restated to read
in its entirety as follows:
Applicable law. This agreement is subject to the laws of the State of Florida, U.S.A. and the federal
laws of the United States.
3. A new Section 18, Limitation of Remedies, is added to the Terms and Conditions and reads as
follows:
Limitations of Remedies Contractor's entire liability and the State's exclusive remedy shall be as
follows:
In all situations involving performance or non-performance of machines or programming (other
than licensed programs) furnished under this Agreement, the State's remedy is (a) the adjustment or
repair of the machine or replacement of its parts by Contractor, or at Contractor's option, replacement
of the machine or correction of programming errors, or (b) if, after repeated efforts, Contractor is
unable to install the machine or a replacement machine, model upgrade or feature in good working
order, or to restore it to good working order, or to make programming operate, all as warranted, the
State shall be entitled to recover actual damages to the limits set forth in this Special Condition. For
any other claim concerning performance or non-performance by Contractor pursuant to, or in any other
way related to the subject matter of, this Agreement or any order under this Agreement, the State shall
be entitled to recover actual damages to the limits set forth in this Special Condition.
11
If this contract is for purchase of machines, then the following shall apply. Contractor's entire
liability for damages to the State for any cause whatsoever, and regardless of form of action, whether
in contract or in tort including negligence, shall be limited to the greater of $100,000 or the appropriate
price stated herein for the specific machines that caused the damages or that are the subject matter of or
are directly related to the cause of action. The foregoing limitation of liability will not apply to (a) the
payment of cost and damage awards referred to in the General Condition 14 entitled 'Patents and
Royalties", or to (b) claims for reprocurement costs or the cost of cover pursuant to State Purchasing
Rule 60A-1.006(4) entitled "Default", or to (c) claims for personal injury or damage to real or tangible
personal property caused by Contractor's negligence or tortious conduct.
If this contract is for .the purchase of hardware maintenance services, then the following shall
apply: Contractor's entire liability and the State's exclusive remedy for damages to the State for any
cause whatsoever, and regardless of the form of action, whether in contract or in tort including
negligence, shall be limited to actual damages up to the greater of $100,000 or an amount equal to 12
months maintenance charges for the specific machines under this Agreement that caused the damages
or that are the subject matter of, or are directly related to, the cause of action. Such maintenance
charges will be those in effect for the specific machines when the cause of action arose. The foregoing
limitation of liability will not apply to (a) the payment of cost and damage awards referred to in
General Condition 14 entitled "Patents and Royalties" or to (b) claims for reprocurement costs or costs '
to cover pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims by the
State for personal injury or damage to real property or tangible personal property caused by the
Contractor's negligence or tortuous conduct.
If this contract is for purchase of software maintenance services, then the following shall apply:
Contractor's entire liability and the State's exclusive remedy for damages to the State for any cause
whatsoever, and regardless of the form of action, whether in contract or in tort including negligence,
shall be limited to actual damages up to the greater of $100,000 or an amount equal to 12 months
maintenance charges for the specific software product under this Agreement that caused the damages
or that are the subject matter of, or are directly related to, the cause of action. Such maintenance
charges will be those in effect for the specific software product when the cause of action arose. The
foregoing limitation of liability will not apply to (a) the payment of cost and damage awards referred to
in General Condition 14 entitled "Patents and Royalties", or to (b) claims for reprocurement costs or
the cost of cover pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims by
the State for personal injury or damage to real property or tangible personal property caused by
Contractor's negligence or tortuous conduct.
If this contract is for services other than hardware or software maintenance, then the following
shall apply: Contractor's entire liability and the state's exclusive remedy for damages to the state for
any cause whatsoever, and regardless of the form of action, whether in contract or in tort including
negligence, shall be limited to actual damages up to the greater of $100,00 or an amount equal to the
charges invoiced for the services which are the subject matter of, or are directly related to, the cause of
action. The foregoing limitation of liability will not apply to (a) the payment of cost and damage
awards referred to in "Patents and Royalties" or to (b) claims for reprocurement costs or costs to cover
pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims by the Department
for personal injury or damage to real property or tangible personal property caused by the Contractor's
negligence or tortuous conduct
If this contract is for the acquisition of licensed programs, including personal computer licensed
programs, then the following shall apply: Contractor's entire liability and the State's exclusive remedy
shall be as follows: In all situations involving performance or non-performance of licensed programs
furnished under this Agreement, the State's remedy is (1) the correction by the Contractor of licensed
12
program defects, or (2) if, after repeated efforts, the Contractor is unable to make the licensed program
operate as warranted, the State shall be entitled to recover actual damages to the limits set forth in this
section. For any other claim concerning performance or non-performance by the Contractor pursuant
to, or in any way related to, the subject matter of this Agreement the State shall be entitled to recover
actual damages to the limits set forth in this section. Contractor's liability for damages to the State for
any cause whatsoever, and regardless of the form of action, whether in contract or in tort including
negligence, shall be limited to the greater of $100,000 or the one time charges paid for, or any monthly
license or initial license charges which would be due for 12 months use of the licensed program that
caused the damages or that is the subject matter of, or is directly related to, the cause of action and
shall include any initial or process charges paid to the Contractor. This limitation of liability will not
apply to (a) the payment of cost and damage awards referred to in General Condition 14 entitled
"Patents and Royalties" or to (b) claims for reprocurement costs or the cost of cover pursuant to State
Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims for personal injury or damage to real
or tangible personal property caused by the Contractor's negligence or tortuous conduct.
Contractor shall hold and save the State harmless for any and all suits and judgments against the
State for personal injury or damage to real or tangible personal property caused by Contractor's
tortuous conduct iri the performance of this Agreement provided that, (a) the State promptly notifies
Contractor in writing of any claim, and (b) Contractor shall be given the opportunity, at its option, to
participate and associate with the State in the control, defense and trial of any claims and any related
settlement negotiations and, provided further, that with respect to any claim, or portion thereof, for
which Contractor agrees at the initiation of such claim that Contractor shall save and hold the State
harmless, Contractor shall have the sole control of the defense, trial and any related settlement
negotiations, and (c) the State fully cooperates with Contractor in the defense of any claim.
In no event, however, will Contractor be liable for (a) any damages caused by the State's failure to
perform the State's responsibilities, or for (b) any lost profits or other consequential damages, even if
Contractor has been advised of the possibility of such damages, or for (c) any claim against the State
by any other party, except as provided in the hold harmless provision of the preceding paragraph of
this Special Condition and except as provided in the General Condition entitled "Patents and
Royalties", or for (d) any damages caused by performance or non-performance of machines or
programming located outside the United States or Puerto Rico.
13
H. Effect of Amendment.
You and us agree, on behalf of ourselves and our respective affiliates, that the terms and conditions of
this Amendment are confidential. Each agrees that it will not disclose such terms and conditions to any third
party other than its affiliates, agents, designated or prospective Reseller and distributors of such Resellers (if
any) .
Except as specifically amended by this Amendment, all provisions of the School Agreement shall
remain unchanged and in full force and effect. This Amendment is not legally binding until executed by us
and shall become effective on that date. When this Amendment is fully executed, you will receive a
confirming copy.
You shall execute and return two (2) copies of this Amendment to the below address in order for the
terms and conditions of this Amendment to apply,
14
MSLI, LLC
Attn: Dept. 551, Volume Licensing
6100 Neil Road
Suite 210
Reno, NV 89511-1132
Name of University (Entity Name): Name of contracting Microsoft affiliate:
By:
Name:
Title:
Date:
(signature)
(printed)
(printed)
MSLI, LLC
By:
Name:
Title:
Date:
(signature)
(printed)
(printed)
Prepared By: Kaylee Deegan