HomeMy WebLinkAboutAmendment No. 1For Microsoft Internal
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School Agreement Number
AMENDMENT NO. 1
TO
MICROSOFT SCHOOL AGREEMENT
This Amendment No. 1 to Microsoft School Agreement (this "Amendment") amends the
Microsoft School Agreement with the School Agreement Number indicated above (the "School
Agreement"), between [ ] ("you") and MSLI, LLC ("we" or "us", as the
case may be). All capitalized terms used but not defined in this Amendment have the meanings
assigned to them in the School Agreement.
I. Amendment.
4. Section 3 of the License Agreement, Applicable Law, is hereby amended and restated to
read in its entirety as follows:
Applicable law. If this License Agreement and your Campus or School Agreement are entered
into in the United States, they are governed by the laws of the State of Florida, U.S.A. and the
federal laws of the United States. If they are entered into in Canada, they are governed by the
laws of the Province of Ontario, Canada. In that case, each of the parties hereto irrevocably
attorns to the jurisdiction of the courts of the Province of Ontario and further agrees to
commence any litigation which may arise hereunder in the courts located in the Judicial District
of York, Province of Ontario. If this License Agreement and your Campus or School
Agreement are entered into in any other jurisdiction, then local law may apply.
5. Section 5b of the License Agreement, 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.
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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.
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 pdriod 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.
b. A new Section 8, 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
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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.
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.
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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 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 in 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
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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.
II. 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.
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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:
B.
Name:
Title:
Date:
(signature)
(printed)
(printed)
MSLI, LLC
By:
(signature
Name:
(printed)
Title:
Date:
(printed)
STATE OF FLORIDA
By:
Name:
Title:
Date:
(signature)
(printed)
(printed)
Prepared By: Kaylee Deegan
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