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HomeMy WebLinkAboutExhibit 1MICROSOFT® OFFICE "12" RAPID DEPLOYMENT PROGRAM DESCRIPTION AGREEMENT PARTNER VERSION This Microsoft Office "12" Rapid Deployment Program ("RDP") Description Agreement (the "Agreement"), is entered into and effective as of , 2006 (the "Effective Date") by and between Microsoft Corporation, a Washington corporation, located at One Microsoft Way, Redmond, WA 98052 ("Microsoft") and ("Company" or "you" or "your"), a «State» corporation, located at «Address». Recitals Microsoft is the developer and owner of those certain software products commonly referred to as Microsoft Office "12" unreleased software technologies which are due to be released for general distribution in 2006 ("Products"). Microsoft has developed the Rapid Deployment Program ("RDP") as a means to work with and assist selected customers and partners of Microsoft products in testing and implementing Microsoft Product(s) and solutions created for those Product(s). Company would like to deploy the Product(s) by participating in the RDP pursuant to the terms and conditions of this Agreement. Agreement in consideration of the mutual promises as stated herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Program Overview 1.1. The RDP program facilitates the deployment of the next release of Microsoft® Office products, currently code -named Microsoft Office "12", while generating feedback for further technology development, providing the basis for case studies and other valuable marketing materials and activities, and providing companies that participate with an opportunity to obtain a greater understanding and awareness of the architecture and capabilities of Office "12". Microsoft intends to work with select customers and partners as part of an early adopter program to drive partner readiness, solutions, and early customer evidence. This program is a partner -focused effort supported in part by dedicated Microsoft Consulting Services employees ("MCS"). Objectives of this program include: 1) ensuring partner technical readiness, 2) delivering repeatable partner solution offerings and references, 3) driving early customer adoption and evidence to ensure availability by Office "12" launch date and 4) participation in Office "12" launch activities. During the program, deployment support and technical assistance will be provided to each Microsoft certified Partner in the form of webcasts, BetaPlace support, and limited Microsoft Consulting Services. In consideration of Microsoft's commitment and resources aimed at the success of the project, Company agrees to participate in the three phases of the RDP program Office "12" launch activities, the specifics of which are described below. 1.2. By taking part in the program Company agrees that its participation is subject to the terms and conditions of this Agreement and any Exhibits attached hereto. 1.3. The Program start date is October 10, 2005 and it will end 120 days after Office ""12": General Availability. 2. Company Obligations 2.1. Company shall use commercially reasonable efforts to ensure its customers develop and deploy the solution(s)-pursuant-to-the-terms set forth in Exhibit A. 2.2. Company will participate in joint publicity and promotion efforts pursuant to the terms set forth in Exhibit B. 2.3. Company's use of the Products shall comply with all the terms of the end user license agreement ("EULA") that is embedded in or accompanies each Product. A sample EULA is included in Exhibit C for your own information. Use of any Product is governed by the EULA accompanying or embedded in the Product and those EULA's may or may not be identical to the informational copy being furnished to you in Exhibit C. In all cases you will have the right to review and accept or reject the terms of each Product License prior to your use of the Product. 2.4. Company will install all required security updates as they are released through BetaPlace. 3. Microsoft Obligations 3.1. Microsoft shall use commercially reasonable efforts to provide to Company consulting/support, solution development and deployment services ("Services") pursuant to the terms set forth in the attached Exhibit A. 4. Expenses 4.1. Company. Company shall bear all time, material and travel expenses with respect to: (i) any Company personnel or Company -authorized contractors assisting or participating in the development and deployment of solutions and (ii) joint publicity activities, as described In Section 1 above. 4.2. Microsoft. Except as provided in Section 4.1, Microsoft shall bear all other expenses under this Agreement, including but not limited to, time, material and travel expenses with respect to the Services performed by Microsoft personnel or Microsoft -authorized contractors. Microsoft will also bear full expense for up to one Company employee to attend regional customer / partner training in February and will pay travel and expenses for Company to attend launch or publicity events. 5. Ownership and Product Use 5.1. Except as expressly licensed to Company in the license agreement governing Company's use of the beta release copies of the Microsoft Software, which may be designated by Microsoft as Beta 1, Beta 2, etc. ("Beta License"), Microsoft retains all right, title and interest in and to the Products. Nothing in this Agreement or the Beta License shall be construed as granting Company, by implication, estoppel or otherwise, a license to any Microsoft product, technology or intellectual property other than as expressly granted under this Agreement with respect to the Products. 5.2. Company may make as many copies of the Products as necessary to distribute the Products to the users who will be participating in the RDP. All copies of Products must be true and complete copies (including copyright and trademark notices) and be made from CD-ROMs, disk sets or a network source acquired directly from Microsoft or another source made available by Microsoft. Company may also have a third party make and distribute copies in its place, but Company is responsible for third -party actions to the same extent it would be if the third party were its employee. Company must make Microsoft Office 12 RDP Agreement 2 reasonable efforts to make employees, agents and other individuals running Products aware that the Products is licensed from Microsoft and may only be run or transferred. subject to the terms of this Agreement and the Beta License. 5.3. Any feedback provided by Company to Microsoft about the Products as required in Section 2.1 and Exhibit A, shall be the property of Microsoft and may be used by Microsoft for any purpose. 5.4. Any Documentation created pursuant to the terms described in Exhibit B shall be the property of Microsoft, subject only to the provisions of Exhibit B. 6. Confidentiality Each party shall use reasonable commercial efforts to keep confidential the terms and conditions of this Agreement and other non-public information related to the subject matter hereof that is disclosed to such party by the other party hereto (collectively "Confidential Information"). However, each party may disclose the terms and conditions of this Agreement in confidence to its immediate legal and financial consultants as required in the ordinary course of its business. 6.1 Existing NDA. If Company has "Standard Reciprocal" non -disclosure agreement ("NDA") with Microsoft that has a version date of March 2002 or later, its terms will govern use of Confidential Information (as defined in the NDA) exchanged during the term of the Agreement. If the Company does not have an NDA with Microsoft, or to the extent the NDA conflicts with the terms of this Agreement, the terms of this Agreement shall apply. 6.2 Confidential Information. Confidential Information means nonpublic information that the party disclosing the information designates as being confidential, or which, under the circumstances surrounding disclosure, ought to be treated as confidential. Confidential Information does not include information which (i) the receiving party developed independently; (ii) is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation owed the disclosing party; or (iii) is feedback. Each of us must refrain from disclosing any Confidential Information of the other for five years following the date of disclosure. However, Confidential Information may be disclosed in accordance with a judicial or other governmental order, if the receiving party either: (a) gives reasonable notice of such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order or its equivalent, or (b) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Each of us is free to use for any purpose the residuals resulting from access to Confidential Information; however, the receiving party may not disclose the Confidential Information except as expressly permitted pursuant to the terms of this agreement. The term "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including ideas, concepts, know how, or techniques contained in the Confidential Information. The receiving party shalt not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub -paragraph does not grant a license to the receiving party under the disclosing party's copyrights or patents. If you are a government entity subject to public records laws, each of us agree that any Microsoft technology made available to you under this agreement constitutes Microsoft trade secret information or similarly -designated information exempt from disclosure to the maximum extent permitted under public records law. Microsoft Office 12 RDP Agreement 3 6.3 Either company may from time to time provide suggestions, comments or other feedback ("Feedback") to the disclosing company with respect to Confidential Information provided originally by the disclosing company. Both you and Microsoft agree that all Feedback is and shall be given entirely voluntarily. Feedback designated in writing as confidential by the party offering the Feedback, shall be subject to the confidentiality provisions of this Agreement. The receiving company will not give Feedback that is subject to license terms that seek to require any disclosing company product, technology, service or documentation incorporating or derived from such Feedback, or any disclosing company intellectual property, to be licensed or otherwise shared with any third party. 7. Term and Termination 7.1. Term. Obligations under this Agreement commence upon the Effective Date and continue for one hundred twenty (120) days after the date an which the Products Is first made available to the general public ("Launch"). License rights granted herein shall be perpetual. 7.2. Termination By Either Party Without Cause. Either party may terminate this Agreement without cause upon fifteen (15) days prior written notice. 7.3. Termination By Either Party For Cause. Either party may suspend performance and/or terminate this Agreement immediately upon written notice at any time If: 7.3.1. The other party is in material breach of any material warranty, term, condition or covenant of this Agreement and fails to cure that breach within thirty (30) days after written notice thereof; or 7.3.2. The other party is in material breach of Section 6. 7.4. Effect of Termination. In the event of expiration of the Term or termination of this Agreement for any reason, all provisions of this Agreement that may reasonably be interpreted or construed as surviving termination of the Agreement will survive the termination of the Agreement. 8, Limitation Of Liabilities and Indemnification 8.1. Limitation of Liabilities. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY RELEASES AND DISCHARGES MICROSOFT, ITS CONTRACTORS, AGENTS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS OR CAUSES OF ACTION THAT THE COMPANY MAY NOW OR IN THE FUTURE HAVE, FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE RDP. In the case that Microsoft may be liable for direct damages, Microsoft's liability shall not exceed $5,000. 8.2. indemnification. Microsoft will defend Company against any claims made by an unaffiliated third party, and will pay the amount of any resulting adverse final judgment (or settlement to which we consent) relating to claims the Products or service deliverable infringes its patent, copyright or trademark or misappropriates its trade secret. 9. General 9.1. Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are received either by messenger, delivery service, or in the Microsoft Office 12 RDP Agreement 4 United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed as follows: To Company: To Microsoft: Microsoft Corporation One Microsoft Way Redmond, WA 98052-6399 Attention: Attention: John Wanke Phone: Phone: (425) 425-707-1168 Fax: Fax: (425) 936-7329 Copy to: Law & Corporate Affairs One Microsoft Way Redmond, WA 98052-6399 Fax: (425) 936-7329 or to such other address as a party may designate pursuant to this notice provision. 9.2. Independent Entities. Nothing in this Agreement shall be construed as creating an employer -employee relationship, a partnership, or a Joint venture between the parties. 9.3. Governing Law. This Agreement shall be construed and controlled by the laws of the State of Washington, and the Parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal subject matter jurisdiction exists, in which case the Parties consent to the exclusive jurisdiction and venue in the Superior of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either Party in the manner authorized by applicable law or court rule. Process may be served on either Party by U.S. Mail, postage prepaid, certified or registered, return receipt requested, or by such other method as is authorized by the Washington Long Arm Statute. 9.4. Assignment. This Agreement shall be binding upon and inure to the benefit of each Party's respective successors and lawful assigns; provided, however, that neither Party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other Party. Any attempted assignment in violation of this Section shall be void. 9.5. Construction. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction if favor or against either party. 9.6. Entire Agreement. This Agreement, together with the attached exhibits, constitutes the entire agreement between the parties with respect to the Services and all other subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Company and Microsoft by their respective duly authorized representatives. Microsoft Office 12 RDP Agreement 5 IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives. The individual signing on behalf of each of the Parties below hereby represents and warrants that he or she has full authority to sign this Agreement and bind his/her respective company to the terms and conditions of this Agreement. MICROSOFT CORPORATION COMPANY City of Miami By Company Name (Print) By Joe Arriola Title Name (print) City Manager Date Title Date ATTEST: PRISCILLA A. THOMPSON CITY CLERK APPROVED AS TO INSURANCE REQUIREMENTS: DANIA F. CARRILLO RISK MANAGEMENT ADMINISTRATOR APPROVED AS TO FORM AND CORRECTNESS: JORGE L. FERNANDEZ CITY ATTORNEY Microsoft Office 12 RDP Agreement 6