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HomeMy WebLinkAboutAmendment No. 1 - 2For Microsoft Internal Purposes Campus Agreement Number AMENDMENT NO. 1 TO ' MICROSOFT CAMPUS AGREEMENT This Amendment No. 1 to Microsoft Campus Agreement (this "Amendment") amends the Microsoft Campus Agreement with the Campus Agreement Number indicated above (the "Campus Agreement"), between r ] ("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 Campus Agreement. I. Amendment. 1. 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 Iaws 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 atoms 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. 2. 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. 30 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 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. 3. A new Section 8, Limitation of Remedies, is added to the Terms and Conditions and reads as follows: 31 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. 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 32 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 Iimitation 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 33 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. 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 Campus 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. 34 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) STATE OF FLORIDA By: Name: Title: Date: (signature) (printed) (printed) Prepared By: Kaylee Deegan 35 For Microsoft Internal Use Purposes Enrollment Number Master Agreement Expiration Date Customer must complete the following: Master Agreement Number Name of Customer signing Master Agreeme r MICROSOFT EDUCATION SELECT ENROLLMENT AGREEMENT This MICROSOFT EDUCATION SELECT ENROLLMENT AGREEMENT is entered into between the following companies as of the date identified under Microsoft's signature below. MSLI, LLC Company Contracting Microsoft Affiliate Address: Address: 6100 Neil Road Suite 210 Reno, NV 89511-1137 Telephone: Telephone: 775-823-5600 Fax: Fax: 775-826-7287 Email: For the Attention of: For the Attention of: Dept. 551, Volume Licensing Terms used in this enrollment shall have the meanings assigned to them in the Master Agreement identified above. By signing this enrollment, you represent and warrant that: a. You have read and understood the Master Agreement identified above, including any addenda and amendments to that agreement (specifically including but not limited to the current version of the use terms), and agree to be bound by those terms. b. You are an eligible education customer and an affiliate of the entity that signed the Master Agreement identified above. c. You expect to acquire licenses equivalent to at least 500 points during the term of this enrollment. This enrollment consists of (1) this cover page, (2) Address Information Form, (3) Affiliate Participation Form, (4) ReselIer Information Form, and (5) the Product Lists and the use terms in effect during the Master Agreement identified above. By signing below, you represent that the information that you provide on each of the attached forms is accurate. 36 Name of Company (Entity Name): Name of contracting Microsoft affiliate: B Name: Title: (signature) (printed) (printed) Date: MSLI, LLC By: Name: Title: Date: (signature) (printed) (printed) The enrollment and attached documents MSLI, LLC 6100 Neil Road Telephone Number (country code -area code - phone number): should be sent to the following Suite 210 775-823-5600 address for Reno, NV 89511-1137 Facsimile Number (country code -area code - approval and processing: phone number): 775-826-7287 37 Address Information Form (The following information must be completely filled in by the Customer for Microsoft to accept this agreement) Any notices must be addressed to the contact and locations outlined below. We will notify you in writing if our address information changes. You must notify us in writing if your address changes. Customer Information Notices Information Microsoft Information Company Name Name and address of contracting Microsoft affiliate MSLI, LLC 6100 Neil Road Suite 210 Reno, NV 89511-1137 USA Phone Number - 775-823-5600 Fax Number - 775-826-7287 Street Address and/or post office box City and State / Province Country and Postal Code Contact Name Phone Number Fax Number Internet Address Microsoft Corporation Law and Corporate Affairs One Microsoft Way Redmond, Washington USA 98052 Attention: Select Attorney 38 Shipping Information License Confirmations and Select CD-ROMs will be shipped to the following address. If CD-ROM ship address differs from the License Confirmation ship address, please complete the Welcome Kit/CD-ROM shipment address section on the following page. License Confirmation Information Microsoft Contact Information (if different from notices address above) Customer Name Microsoft Account Manager Name Street Address Microsoft Office Location City and State / Province Country and Postal Code Contact Name Phone Number Fax Number Internet Address Language (If different than language of this agreement) Microsoft Contact Email Address (if applicable) Microsoft will automatically ship ONE SELECT CD-ROM subscription with a Welcome Kit for each pool and language designated in the table below. If your right to purchase licenses under a particular pool has been terminated (for failure to comply with your forecast), Microsoft will discontinue shipment of subscriptions for that pool. Please mark each box with an "X" for the language(s) you wish to have shipped for each of the pools you have chosen on the Master Agreement identified on the cover page. You may only enroll in the pool or pools designated under the Master Agreement. If you would like to receive additional shipments of CD-ROM subscriptions you may order them through your Large Account Reseller for a fee. Language Application Pool System Pool Server Pool Arabic Basque Brazilian Catalan Chinese -Simplified Chinese -Traditional Czech Danish Dutch East European 39 English Finnish French French Canadian German Greek Hebrew Hungarian International English Italian Japanese Korean Norwegian Polish Portuguese Russian Spanish Swedish Thai Turkish elcome Kit / CD-ROM Shipment Contact (if different from License Confirmation contact Company Name Contact Name Street Address Phone Number City and State / Province , Fax Number Country and Postal Code Internet Address 40 Affiliate Participation Form (The following information must be completed by the customer and updated, as necessary, by written notice to the contracting Microsoft affiliate.) List the affiliates which will sublicense products from you under this enrollment. The entities must be grouped by country. Attach additional sheet(s) if necessary. Affiliates not listed below will not be licensed under this agreement. Listing an affiliate on this form does not preclude that affiliate from signing its own enrollment. Names of affiliates not becoming enrolled affiliates, but receiving products by sublicensing from you Name of Country 41 Reseller Information Form You must choose a Large Account Reseller authorized in your area. If, at any time during the term of the agreement, you wish to terminate the relationship with your designated Large Account Reseller, or if we discontinue the reseller's status as Large Account Reseller, you must choose a replacement. If you intend to change Large Account Resellers, you must notify us and the old Large Account Reseller in writing of the new Large Account Reseller you have designated. To avoid purchasing delays such a change might entail, you should provide us with 30 days prior written notice. (The following sections should be completed by the Large Account Reseller) Large Account Reseller Headquarter Information Large Account Distributor Information anvlicable Reseller Name Distributor Name Headquarters Street Address and/or post office box , Headquarters Street Address and/or post office box City and State / Province City and State / Province Country and Postal Code Country and Postal Code Contact Name Contact Name Phone Number Phone Number Fax Number Fax Number Internet Address Internet Address The undersigned confirms that the Large Account Reseller and Large Account Distributor information is correct. 42 Name of Large Account Reseller: Name of Large Account Distributor (f applicable): By: Name: Title: (signature) (printed) (printed) Date: By: Name: Title: Date: (signature) (printed) (printed)