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HomeMy WebLinkAboutTerms and ConditionsMICROSOFT EDUCATION SELECT MASTER AGREEMENT TERMS AND CONDITIONS In this agreement the term "you" means the eligible education customer which has entered into this agreement with Microsoft. The term "we" or "us" refers to the Microsoft company which signed this agreement. The term "eligible education customer" means (a) a bona fide educational institution accredited by federal or state governmental regulatory agencies in the United States; (b) the administrative offices of two or more educational institutions described in clause (a); (c) a system of affiliated educational institutions or a not -for - profit consortium of educational institutions described in clause (a); (d) a hospital that is wholly owned and operated by one or more educational institutions described in clause (a); (e) a public library that provides basic general library services without charge; (f) a public museum organized on a permanent basis essentially for educational or aesthetic purposes that utilizes a professional staff and regularly exhibits tangible objects to the public; or (g) a university -controlled public research laboratory recognized by the Department of Education that teaches students as part of its research mission. A complete "Eligible Education Customer" definition is available at http://www.microsoft.com/education/pricing/elig.htm. Your "affiliates" are eligible education customers that you own, that own you, or that are under common ownership with you. Our "affiliates" are legal entities that we own, that own us, or that are under common ownership with us. The term "ownership" means more than 50% ownership. ' Your "enrolled affiliates" are your affiliates that reasonably expect to acquire licenses equivalent to at least 500 points and have entered into an enrollment under this agreement. An "enrollment" is the document that an affiliate is required to submit to one of our affiliates before it can order licenses or Upgrade Advantage subscriptions. As we use the term in this agreement to "run" a product means to copy, install, use, access, display, run or otherwise interact with it. When we refer to "license confirmations" we mean the evidence of license or Upgrade Advantage subscription provided by us or our affiliates. 1. Select volume license acquisition. Select is a volume licensing program that allows you and enrolled affiliates to license certain products at a volume price level. Product support is not included in the price for products under Select. 2. Who can order. Starting on the effective date, you may order licenses and Upgrade Advantage subscriptions. Your enrolled affiliates may order licenses and Upgrade Advantage subscriptions once their enrollment has been accepted. With respect to its enrollment, each enrolled affiliate is responsible for complying with the terms and conditions of this agreement to the same extent as you. Orders must be placed with the reseller named on the Reseller Information Form. The named reseller must be authorized to sell Select licenses in the area in which the enrollment is submitted. You are responsible for ensuring that your affiliates comply with the terms and conditions of this agreement. 3. Who can benefit. You and enrolled affiliates can sublicense to affiliates who do not enter into an enrollment but who are identified on an Affiliate Participation Form attached to this agreement or to the relevant enrollment, in order to allow them to share the benefits of this agreement. We will add affiliates to the proper Affiliate Participation Form upon your request. Neither you nor enrolled affiliates may acquire licenses or Upgrade Advantage subscriptions under this agreement for the use or benefit of any person or entity other than you and your affiliates. When licenses are sublicensed, you or the enrolled affiliate retains the licenses but the affiliate to which you sublicense may run the licensed products. You may want to have licenses owned in the name of an affiliate. If so, you must transfer the relevant license confirmation, (or, if you are transferring a portion of the licenses listed on a license confirmation, you must transfer a photocopy of the relevant license confirmation, along with a statement identifying the licenses being transferred). Other transfer restrictions set out in section 12 also apply. 4. Products. You may order licenses for any products included on the Product List in effect at the time of your order, in any pool for which you have made the minimum forecast. You may order standard or 3 upgrade licenses. You may also order Upgrade Advantage subscriptions for certain products. You may order an upgrade license or Upgrade Advantage subscription only if you already have a qualifying license. The Product List provides information on Microsoft products available for licensing under Select, information on point values, product pools, product upgrade or license qualification criteria, Upgrade Advantage subscriptions and additional product information. New versions of the Product List will be made available to you and enrolled affiliates. 5. Orders. A license must be ordered in the month in which the copy of a product is first run from a particular computer or similar device. Your order must specify version number, language and country of usage for each license. Price and payment terms for all licenses and subscriptions ordered are determined by agreement with the chosen reseller. We will issue license confirmations covering all licenses and Upgrade Advantage subscriptions ordered. The license confirmations are your evidence of license. 6. Compliance with forecasts. If your total license acquisitions within a selected pool are less than 500 points after the first six months of this agreement or less than 1,000 points after the first year, you will no longer be able to acquire licenses from that pool under this agreement. 7. Rights during this agreement. During the term of this agreement you have the right to: Run the products for which you timely order corresponding licenses or Upgrade Advantage subscriptions. — Run any prior version of a copy of a product for which you have received a license confirmation. Run any other language version of a copy of a product for which you have received a license confirmation. — Run up to 20 copies of any product in a dedicated training facility on your premises (this right extends only to you and enrolled affiliates, not to other affiliates). — Run up to 10 copies of any product for a 60-day evaluation period (this right extends only to you and enrolled affiliates, not to other affiliates). — Make and retain one copy of any licensed product for back-up or archival purposes for each of your distinct geographic locations. — For each copy of Microsoft Encarta Reference Suite, Microsoft Encarta Deluxe, Microsoft Encarta Virtual Globe, any title from the Microsoft Mastering Series, Microsoft Visual Basic (Learning, Professional and Enterprise Editions), Microsoft Visual C++ (Standard, Professional and Enterprise Editions), Microsoft Visual FoxPro, Microsoft Visual J++ (Standard and Professional Editions), Microsoft Visual Studio (Professional and Enterprise Editions) and Microsoft Visual InterDev you license for instructional purposes in connection with a class or other educational program, you may, as an alternative to deploying the product pursuant to the licensing model described in the use terms, either (a) permit an unlimited number of student users at your educational institution to run the product on a single computer or similar device, provided that all such users comply with all other terms of this agreement; or (b)_if you have licensed multiple copies of the product, then, at any time, your students or faculty may run as many copies of the product as you have licensed copies, provided that those users comply with all other terms of this agreement. If the anticipated number of users of the product will exceed the number of copies you have licensed, you must have a reasonable mechanism or process in place to ensure that the number of persons running the product at any given point in time does not exceed the number of copies licensed. 4 — For each copy of Microsoft Office, Microsoft Office Professional, Microsoft Publisher, Microsoft Project and Microsoft FrontPage you license, any user of the computer or similar device on or from which such product is run may also run a second copy, for work -related purposes only, on either a laptop or desktop computer that he or she owns or leases. You must make reasonable efforts to ensure these users delete and remove such copies from the temporary memory (RAM) and permanent memory (e.g. hard disk) of their computers at the end of the term of this agreement. 8. License confirmations. Once you have received a license confirmation, the listed licenses become perpetual, as long as you use the products only as permitted by this agreement and the use terms. An Upgrade Advantage subscription listed in a license confirmation is not perpetual, but rather entitles you to a perpetual right to run one copy of the identified product in the latest version that becomes available at retail during the term of this agreement. 9. Use terms. Your right to run a copy of any version of any product is governed by the use terms applicable to the product and version licensed as of the date you first run that copy. We will either provide you a copy of the use terms in effect, or will make them available to you by publication on the World Wide Web at a site we identify to you or by some other means. You acknowledge that you and your enrolled affiliates have access to the World Wide Web. 10. Making copies. You may make as many copies as are necessary to distribute the products to your users and those of your affiliates. All copies must be true and complete copies (including copyright and trademark notices) and be made from CD-ROMs, disk sets or a network source acquired from or made available by a Microsoft approved fulfillment source. You may also have a third party make and distribute such copies in your place, but you are responsible for their actions to the same extent you would be if they were your employees. You and your affiliates must make reasonable efforts to make employees, agents and other individuals running a product aware that the product is licensed from us and may only be run or transferred subject to the terms of this agreement. 11. Restrictions. Your rights under this agreement are limited as follows: — We do not assign any copyright. Your rights are expressly limited to the rights described in this agreement and in the use terms. — If a product is made up of components, you may not separate the components by running them on different computers, by upgrading or downgrading them at different times or by transferring them separately, except as otherwise provided in the use terms. You may not rent, lease or lend any copy of the product. — You may not reverse engineer, decompile or disassemble the product, except to the extent expressly permitted by applicable law despite this limitation. — You may not export products (including software, documentation and technical detail and any software which you develop using products) in contravention of United States export restrictions, which apply to all Microsoft products. Export restrictions prohibit exporting or transmitting products to certain countries (currently including, but not limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria) without consent from the appropriate US government agency. They also prohibit using or making the products available to others for use in the design, development or production of nuclear, chemical or biological weapons. For an up-to-date export classification of Microsoft products, please visit http://www.microsoft.comlexporting/. In addition, certain products containing encryption technology are 5 available in two versions, one for US and Canada and the other for all other countries. These products are identified on the Product List. Depending on the foreign recipient and planned use, the export of the US/Canada versions may require an export license from the appropriate US government agency. More information can be found on the World Wide Web at httpJ/www.microsoft.com/exporting. You represent that neither you nor any of your affiliates signing an enrollment or named on any Affiliate Participation Form has had export privileges suspended, revoked or denied by a US government agency. — Products licensed to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 are licensed with the rights and restrictions described in this agreement. Products licensed to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 are licensed with "Restricted Rights" as provided for in FAR, 48 CFR 52.227-14 (,TUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. You are responsible for ensuring that copies are marked with the "Restricted Rights Notice" or "Restricted Rights Legend," as required. We reserve all rights not expressly granted to you. - Products licensed under this agreement may be used only by and for the benefit of an eligible education customer. Client Access Licenses you acquire solely to enable your matriculated students to access your servers are, for purposes of this restriction, deemed to be "used by and for the benefit of an eligible education customer". Licenses obtained under this agreement may not be transferred, sublicensed, rented, leased or loaned to any person or entity that is not an eligible education customer. 12. Transfers, You may transfer licenses to an unaffiliated eligible education customer in connection with a merger, consolidation or divestiture. For all other transfers of licenses, our written consent is required. Upgrade licenses may be transferred only if you also transfer the qualifying license. You must transfer the relevant license confirmations or, if transferring a portion of the licenses, you must provide a photocopy of the relevant license confirmations, along with a statement identifying the licenses being transferred. In addition, you must secure from the entity to which you are transferring the acceptance of the use terms and the provisions of sections 11 above and 14 below (restrictions and limitations of liability), and the acknowledgment of the fact that products transferred pursuant to this section 12 are transferred "as is", without warranty•of any kind. You may transfer a license for an operating system product only as part of the sale or transfer of the computer system on which the product was first installed. You may not transfer Upgrade Advantage subscription rights to, or use such rights for the benefit of, a third party other than an affiliate. Licenses cannot be transferred on a short-term basis. 6 13. Warranties and other obligations of Microsoft. a. Limited product warrant'. We warrant that each product will perform substantially in accordance with its Microsoft -published user documentation. This warranty is valid for a period of 90 days from the date you first order (or should have ordered) a license for the version of the product. For products run pursuant to an Upgrade Advantage subscription, the warranty is valid for a period of 90 days from the date you first run the version of the product from any computer or similar device. Any warranties imposed by law concerning the products are limited to the same 90 day period. The warranty is not applicable if failure of the product has resulted from accident, abuse or misapplication. If you notify us within the warranty period that a product does not meet this warranty, then we will, at our option, either (i) return the price paid or (ii) repair or replace the product. This is your exclusive remedy for breach of this warranty. b. Year 2000 warranty. For purposes of this section, "Year 2000 Warranted Product" means the specific version of each product identified in the Product Guide on the effective date, by version number and language, as "compliant" or "compliant with minor issues", and "Product Guide" means the Microsoft Year 2000 Product Guide located on the Microsoft Year 2000 Resource Center web page (http://microsoft.com/year2000/). We warrant that each Year 2000 Warranted Product, when run with accurate date data and in accordance with its documentation and the recommendations and exceptions set forth in the Product Guide, will recognize the year 2'000 as a leap year and will not produce material errors processing date data in connection with the year change from 1999 to 2000, as long as, and only to the extent that, all other information technology used in combination with such Year 2000 Warranted Product (e.g., software, firmware, hardware) properly exchanges date data with it. This warranty does not extend or apply to user customizable features or third -party add -on features or products, including items such as macros and custom programming or formatting features. If you report to us on or before June 1, 2000 that a product does not meet this warranty, we will: (i) exercise commercially reasonable efforts to correct any material non- compliance which is generally reported by other users; and (ii) provide any resulting correction to you, without charge, when it is made available generally. This is your exclusive remedy for breach of this warranty. c. NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES ALL WARRANTIES OTHER THAN THOSE IDENTIFIED EXPRESSLY IN THIS SECTION 13, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON - INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCTS AND RELATED MATERIALS. 14. Limitation of liability. a. Limitation. There may be situations in which you have a right to claim damages from us. Whatever the basis for your claim (such as breach of contract or tort), our liability will be limited to direct damages up to the amount you have paid under this agreement with respect to the product giving rise to your claim, b. No liability for consequential damages. To the maximum extent permitted by applicable law, in no event will we or any of our affiliates or suppliers be liable for any indirect damages (including, without limitation, consequential damages, damages for loss of profits or revenues, business interruption, loss of business information, or other loss) arising in connection with this agreement, any enrollment or product, even if advised of the possibility of such damages. 15. Verifying compliance. You must keep records relating to the products you and your affiliates run. These records must be sufficient to allow us to verify compliance with your obligations under this agreement and must include information relating to licenses you have sublicensed to affiliates. We have the right to 7 verify your compliance, at our expense, during the term of this agreement and for a period of one year thereafter. To do so, we will engage an independent accountant from a nationally recognized public accounting firm. Verification will take place upon not less than three business days' notice, during normal business hours and in a manner that does not interfere unreasonably with your operations. As an alternative, we may require you to accurately complete a self -audit questionaire on behalf of yourself and/or your affiliates in a form we provide. If verification or self -audit reveals unlicensed use of products, you must promptly order sufficient licenses to permit all software usage disclosed. If material unlicensed use is found (license shortage of 5% or more), you must reimburse us for the costs we have incurred in verification and must acquire the necessary additional licenses as single retail licenses. If we undertake such verification and do not find material unlicensed use of products, we will not undertake another verification for at least one year. We will use any information obtained in connection with compliance verification only to enforce our rights and to determine whether you are properly licensed for the products you are running and are in compliance with the terms of this agreement. 16. Term and termination. This agreement will remain in effect for 24 full calendar months following the effective date, unless terminated by either party for cause. Either party may also terminate an enrollment for cause. Except where the cause for termination is by its nature not curable (or not curable within 30 days), the terminating party will give 30 days notice and opportunity to cure. If we give such notice to an enrolled affiliate, we will give you a copy of that notice as well. If an enrolled affiliate ceases to be your affiliate, its enrollment will terminate automatically. Unless terminated for cause, an enrollment will expire or terminate upon the expiration or termination of this agreement. Upon expiration or termination of this agreement or any enrollment, you or the enrolled affiliate must promptly order licenses for all copies of products you have run for which you have not yet submitted orders. Upon termination, any deferred Upgrade Advantage subscription fees become immediately due and payable. Termination of this agreement will not affect your rights to run copies of products for which you have already ordered licenses. 17. Miscellaneous. a. Entire agreement. The documents identified on the cover page constitute our entire agreement concerning the subject matter hereof, and supercede any other prior and contemporaneous communications. The terms of this agreement control over any provisions in your purchase order or any general terms and conditions maintained by us, you or your enrolled affiliates. To the extent there is any inconsistency between the terms contained in this agreement and the terms contained in the Product List or the use terms, the terms of this agreement shall control. This agreement (except the use terms and the Product List) can be changed only by an amendment signed by both parties. b. Notices. All notices, authorizations, and requests in connection with this agreement shall be sent by post, express courier, facsimile, or email, in each case with confirmation of delivery, to the addresses and numbers shown on the Address Information Form. Notices shall be deemed delivered on the date shown on the postal return receipt or on the courier, facsimile or email confirmation of delivery. c. Assignment. You may not assign or transfer this agreement or your rights or obligations under it, whether by contract or by operation of law, without our prior written consent. We may transfer our rights and obligations hereunder without your consent, but only to one of our affiliates. Any prohibited assignment is void. d. Applicable law. This agreement is subject to the laws of the State of Washington, U.S.A. and the federal laws of the United States. 8 e. Survival. Licenses identified in license confirmations and provisions of this agreement regarding warranties, limitations of liability, compliance verification and obligations on termination or expiration will survive termination or expiration of this agreement. f. Confidentiality. The terms and conditions of this agreement are confidential. Neither you nor we will disclose such terms and conditions, or the substance of any discussions that led to them, to any third party other than your or our affiliates or agents, or to your designated or prospective resellers who: (a) have a need to know such information in order to assist in carrying out this agreement; and (b) have been instructed by you or us that all such information is to be handled in strict confidence. g. Lar2e Account Resellers. Resellers are independent contractors who act in their own name and for their own account; and have no authority to bind or impose any obligation or liability whatsoever upon us. 9