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HomeMy WebLinkAboutECAT19-010 Microsoft Enterprises ProgramSignForm(NoMSSign)(WW)(ENG)(Oct2012) Page 1 of 2 Program Signature Form Agreement number V0947755 Note: Enter the applicable active numbers associated with the documents below. Microsoft requires the associated active number be indicated here, or listed below as new. For the purposes of this form, “Customer” can mean the signing entity, Enrolled Affiliate, Government Partner, Institution, or other party entering into a volume licensing program agreement. This signature form and all contract documents identified in the table below are entered into between the Customer and the Microsoft Affiliate signing, as of the effective date identified below. Contract Document Number or Code Open Value Agreement Commercial X20-13976 By signing below, Customer and the Microsoft Affiliate agree that both parties (1) have received, read and understand the above contract documents, including any websites or documents incorporated by reference and any amendments and (2) agree to be bound by the terms of all such documents. Customer Name of Entity (must be legal entity name)* Eagle County Regional Airport Signature* Printed First and Last Name* Printed Title* Signature Date* Tax ID * indicates required field Customer (Optional 2nd) Name of Entity (must be legal entity name)* Signature* Printed First and Last Name* Printed Title* Signature Date* Tax ID * indicates required field If Customer requires physical media, include the media form(s) with this signature form. For OV/OVS programs, products are available for online download from Volume Licensing Service Center. After this signature form is signed by the Customer, send it and the Contract Documents to your Reseller, who must submit them to the Regional Operation Center. When the Agreement has been processed, Customer will receive a confirmation. Prepared By: Alexander Strickland Alexander.Strickland@ingrammicro.com DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 10/31/2019 County Manager Jeff Shroll ProgramSignForm(NoMSSign)(WW)(ENG)(Oct2012) Page 2 of 2 DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 1 of 13 Document X20-13976 Volume Licensing Open Value Agreement Agreement number Microsoft to complete V0947755 Previous Agreement(s) number Reseller to complete This agreement must be attached to a signature form to be valid. This Open Value Agreement is entered into between Customer and Microsoft as of the effective date identified in the signature form. Licensing Customer information. Customer ID: A7CCD864 Entity name* Eagle County Regional Airport Contact name: First* Jake Last* Klearman Contact email address* jake.klearman@eaglecounty.us Street address* 217 Eldon Wilson Rd City* Gypsum State/Province (if applicable)* CO Postal code* 81637 Country* United States Phone 0000000 Tax ID (if applicable) * indicates required field The personal information Customer provides in connection with this agreement will be used and protected according to the privacy statement available at https://www.microsoft.com/licensing/servicecenter. Notices contact and online administrator. This contact (1) receives all contractual notices and (2) is the Online Administrator for the Volume Licensing Service Center and may grant online access to others. Entity name* Eagle County Regional Airport Contact name: First* Jake Last* Klearman Contact email address* jake.klearman@eaglecounty.us Street address* 217 Eldon Wilson Rd City* Gypsum State/Province (if applicable)* CO Postal code* 81637 Country* United States Phone 0000000  This contact is a third party (not the Customer) Warning: This contact receives personally identifiable information about the Customer. * indicates required field This agreement consists of (1) the terms and conditions of this agreement, (2) the Product List, (3) the Use Rights, (4) the signature form, (5) any orders submitted under this agreement, and (6) if Customer is a government entity, the Government Eligibility Definition on http://www.microsoft.com/licensing/contracts. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 2 of 13 Document X20-13976 A. Select a purchasing option. Please select one of the options below:  Non organization-wide option (complete sections B, D, and E below), minimum 5 Licenses in each category (Products and Licenses are identified at the time of order).  Organization-wide option, select at least one Enterprise Product or Enterprise Online Service from the product categories below to cover all Qualified Devices and/or Qualified Users, depending on the License type. Customer’s Enterprise must have a minimum of 5 Qualified Devices or Qualified Users. To qualify for the platform discount, check all three product categories. OS  Please see the Product List for current Windows Desktop Operating System options Office Applications  Please see the Product List for current Office Desktop Applications and Office 365 Applications options Office 365 / CAL Suites  Please see the Product List for current Office 365 Suite and CAL Suite options B. Define Customer’s Enterprise (select only one). Use this section to identify which Affiliates are included in the Enterprise. When a selection is made that includes Affiliates, Customer must cover all Affiliates’ Qualified Devices and/or Qualified Users with an Enterprise Product or Enterprise Online Service from section A above, at the beginning of the agreement. Customer’s Enterprise must consist of entire legal entities, not partial entities such as departments, divisions, or business units. Customer’s Enterprise includes (Check only one box in this section):  Customer only  Customer and all Affiliates within Customer’s Defined Region  Customer and the following Affiliate(s) within Customer’s Defined Region  Customer and all Customers’ Affiliates within its Defined Region with the following Affiliate(s) excluded: Please indicate whether the Customer’s Enterprise will include all new Affiliates acquired after the start of this agreement: Include future Affiliates C. Identify Customer price level (Commercial Customers only).  Check if Customer is purchasing 250 or more desktops on its first order. D. Identify the Subscriptions manager and Software Assurance and online services managers (if different from notices). Software Assurance manager This contact will receive online permissions to manage the Software Assurance benefits under this agreement. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 3 of 13 Document X20-13976 Entity name* Eagle County Regional Airport Contact name: First* Jake Last* Klearman Contact email address* jake.klearman@eaglecounty.us Street address* 217 Eldon Wilson Rd City* Gypsum State/Province (if applicable)* CO Postal code* 81637 Country* United States Phone 0000000 * indicates required field Subscriptions manager This contact will assign MSDN Subscription Licenses to the individual subscribers under this agreement. Assignment of the Subscription Licenses is necessary for access to any of the online benefits, such as subscription downloads. This contact will also manage any complimentary or additional media purchases related to these subscriptions. Entity name* Eagle County Regional Airport Contact name: First* Jake Last* Klearman Contact email address* jake.klearman@eaglecounty.us Street address* 217 Eldon Wilson Rd City* Gypsum State/Province (if applicable)* CO Postal code* 81637 Country* United States Phone 0000000 * indicates required field Online Services manager This contact will be provided online permissions to manage the Online Services ordered under this agreement. Entity name* Eagle County Regional Airport Contact name: First* Jake Last* Klearman Contact email address* jake.klearman@eaglecounty.us Street address* 217 Eldon Wilson Rd City* Gypsum State/Province (if applicable)* CO Postal code* 81637 Country* United States Phone 0000000 * indicates required field E. Name Customer’s reseller/distributor. Reseller Entity name* SPADAFY LLC Contact name: First* Aleithea Last* Jovanovich Contact email address* al@spadafy.com Street address* 9750 3rd Ave NE City* Seattle State/Province (if applicable)* WA Postal code* 98115 Country* United States Phone 206-850-1113 DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 4 of 13 Document X20-13976 * indicates required field Distributor (if applicable) Entity name* Ingram Micro Contact name: First* Open Last* *Value Contact email address* microsoft-licensing@ingrammicro.com Street address* 1759 Wehrle Drive City* Williamsville State/Province (if applicable)* NY Postal code* 14221-7033 Country* United States Phone 800-456-8000 * indicates required field Name of Microsoft contracting Affiliate and notices contact information for Microsoft Microsoft Corporation Dept. 551, Volume Licensing 6100 Neil Road, Suite 210 Reno, Nevada 89511-1137 USA DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 5 of 13 Document X20-13976 Terms and Conditions 1. Definitions. In this agreement, the following definitions apply: “Additional Product” means any Product identified as such in the Product List and chosen by Customer under this agreement. “Affiliate” means (1) any legal entity that a party owns, is owned by or that is under common ownership with that party, or (2) if Customer is a government entity, any entity that meets the qualifying government criteria located at http://www.microsoft.com/licensing/contracts and is located in the same country as Customer. “Ownership” means, for purposes of this definition control of more than a 50% interest in an entity. “Customer” means the entity that has entered into this agreement. “Customer Data” means all data, including all text, sound, software, image or video files that are provided to Microsoft by, or on behalf of, Customer and its Affiliates through the use of the Online Services. “Defined Region” means the geographical region as defined on the regional listing located at http://www.microsoft.com/licensing/licensing-options/open-regional.aspx where the Customer is organized and operated. “Enterprise” means Customer and the Affiliates it chooses to include under this agreement. “Enterprise Online Service” means any Online Service designated as an Enterprise Online Service in the Product List and chosen by Customer under this agreement. Enterprise Online Services are treated as Online Services, except as noted. “Enterprise Product” means any Product that Microsoft designates as an Enterprise Product or as qualifying for an organization-wide and/or platform discount on the Product List and chosen by Customer under this agreement. Enterprise Products must be licensed for all Qualified Devices and Qualified Users, depending on the License type, on an Enterprise-wide basis under this program. “Fix(es)” means Product fixes, modifications, or enhancements or their derivatives that Microsoft either releases generally (such as service packs) or that Microsoft provides to Customer when performing services to address a specific issue. “License” means the right to download, install, access and use a Product. For certain Products, a License may be available on a fixed term or subscription basis (“Subscription License”). Licenses for Online Services will be considered Subscription Licenses. “Microsoft” means the Microsoft Affiliate that has entered into this agreement and its Affiliates. “Online Services” means the Microsoft-hosted services identified as Online Services in the Product List. “Product” means all products identified on the Product List, such as all software, Online Services and other web-based services, including pre-release or beta versions. “Product List” means the statement published by Microsoft from time to time at the Volume Licensing Site. The Product List may include Product-specific conditions or limitations on the acquisition of Licenses for Products. “Qualified Device” means any device that is used by or for the benefit of Customer’s Enterprise and is: (1) a personal desktop computer, portable computer, workstation, or similar device capable of running Windows Professional locally (in a physical or virtual operating system environment) or (2) a device used to access a virtual desktop infrastructure (“VDI”). Qualified Devices do not include any device designated as a server and not used as a personal computer, or any device that only employs an industry- or task- specific software program. At its option, Customer may designate any device excluded above that is used by or for the benefit of Customer’s Enterprise as a Qualified Device for all or a subset of Enterprise Products or Online Services Customer has selected. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 6 of 13 Document X20-13976 “Qualified User” means a person (e.g. employee, consultant, contingent staff) who (1) is a user of a Qualified Device or (2) accesses any server software requiring an Enterprise Product Client Access License or any Enterprise Online Services. It does not include a person who accesses server software or an Online Service solely under a License identified in the Qualified User exemptions in the Product List. “SLA” means Service Level Agreement, which specifies the standards to which Microsoft agrees to adhere and by which it measures the level of service for an Online Service. The SLA is available at the Volume Licensing Site. “Software” means licensed copies of Microsoft software identified on the Product List. Software does not include Online Services, but Software may be part of an Online Service. “Software Assurance” is an offering by Microsoft that provides new version rights and other benefits for Products as described in the Product List. “Trade Secret” means information that is not generally known or readily ascertainable to the public, has economic value as a result, and has been subject to reasonable steps under the circumstances to maintain its secrecy. “use” or “run” means to copy, install, use, access, display, run or otherwise interact with. “Use Rights” mean, with respect to any licensing program, the use rights or terms of service for each Product and version for that licensing program published at the Volume Licensing Site. The Use Rights supersede the terms of any end user license agreement (on-screen or otherwise) that accompanies a Product. The Use Rights for Software are published by Microsoft in the Product Use Rights. The Use Rights for Online Services are published in the Online Services Terms. “Volume Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site. 2. Pricing. a. Organization-wide option. Microsoft offers savings for individual Products ordered under the organization-wide option, and additional savings under the platform discount are available only at the time of the initial order. In addition, the prices Microsoft charges the distributor/reseller for Products ordered under the organization-wide option will not change during the first term of the agreement. Prices are re-established at renewal. The prices Microsoft charges the distributor/reseller for all other Products are established at the time of each order. If Customer elects the organization-wide option at the time it signs this agreement, it means that Customer agrees to order, for each selected Product, the number of Licenses equal to the number of its Qualified Devices and/or Qualified Users (including Qualified Devices and/or Qualified Users of its Affiliates listed on the cover pages, and including Qualified Devices and/or Qualified Users added during the first term and any renewal term). b. Product price and payment terms set by Customer’s reseller. Customer’s prices for each Product will be established by its reseller. 3. Licenses for products. a. License Grant. Microsoft grants Customer a non-exclusive, worldwide and limited right to install and use the software Products and to access and use the Online Services, each in the quantity ordered under this agreement. The rights granted are subject to the terms of this agreement, the Use Rights and the Product List. b. Use by Affiliates. Customer may sublicense its Licenses for Products to any Affiliates located in Customer’s Defined Region, but Affiliates may not sublicense these rights and their use must be consistent with the terms contained in this agreement. c. Duration of Licenses. Subscription Licenses and most Software Assurance rights are temporary and expire when this agreement is terminated or expires. For Online Services, the DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 7 of 13 Document X20-13976 duration of the Subscription License starts at the time of Product activation and not the time of order and the Subscription License will remain subject to the terms of this agreement and the applicable Use Rights notwithstanding the termination or expiration of this agreement. d. Applicable Use Rights. (i) Products (other than Online Services). The Use Rights in effect on the effective date of this agreement will apply to Customer’s use of the version of each Product that is current at the time. For future versions and new Products, the Use Rights in effect when those versions and Products are first released will apply. Changes Microsoft makes to the Use Rights for a particular version will not apply unless Customer chooses to have those changes apply. (ii) Online Services. For Online Services, the Use Rights in effect on the subscription start date will apply for the subscription term as defined in the Product List. e. Downgrade rights. Customer may use an earlier version of a Product than the version that is current on the effective date of this agreement. In that case, the Use Rights for the current version apply to the use of the earlier version. If the earlier Product version includes features that are not in the new version, then the Use Rights applicable to the earlier version apply with respect to those features. f. New Version Rights under Software Assurance. Customer must order and maintain continuous Software Assurance coverage for each License ordered. With Software Assurance coverage, Customer automatically has the right to use a new version of a licensed Product as soon as it is released, even if Customer chooses not use the new version immediately. g. License confirmation. This agreement, Customer’s order confirmation, and any documentation evidencing transfers of Licenses, together with proof of payment, will be Customer’s evidence of all Licenses obtained under this agreement. h. Non-Microsoft software and technology. Customer is solely responsible for any non- Microsoft software or technology that it installs or uses with the Products or Fixes. Customer may not install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to obligations beyond those included in this agreement. i. Restrictions on use. Customer must not (and must not attempt to) reverse engineer, decompile, or disassemble the Product or Fix. Except as expressly permitted in this agreement, Customer must not (1) separate and run parts of a Product on more than one computer, upgrade or downgrade parts of a Product at different times, or transfer parts of a Product separately; or (2) distribute, sublicense, rent, lease, lend or host any Product or Fix. j. Reservation of rights. All rights not expressly granted are reserved to Microsoft. 4. How to order Products. a. Choosing a reseller. Customer must choose and maintain a reseller authorized in Customer’s Defined Region. b. Sign this agreement. Customer will be directed to a password protected Microsoft Web site to accept this agreement and allow its reseller to place Customer’s order. Customer will receive an agreement confirmation which will indicate Microsoft’s acceptance of the agreement. The agreement confirmation may be sent by email. This agreement will be terminated if Customer fails to place an order within 30 days of agreement confirmation. After the reseller places Customer’s first order, Customer will receive an order confirmation. If Customer is unable to access Microsoft’s Web site, Customer should contact its reseller. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 8 of 13 Document X20-13976 c. Order Licenses and Software Assurance (or just Software Assurance if eligible). Customer must place orders for additional copies and any new Products in the month in which it first runs those Products. d. Choose payment options. If Customer elects to spread payments, Customer must submit an order each year through its reseller, even if there is no change in the number of Products run. (i) The order must be for no less than the number of Products ordered on its previous anniversary order plus any new and additional products ordered during the year. Customer’s reseller will invoice Customer for the order. (ii) Microsoft will give Customer prior written notice each anniversary to submit an anniversary order to Customer’s reseller. If Microsoft does not receive an order within 60 days after the anniversary of the effective date, Microsoft may invoice Customer directly (or instruct a third party to invoice and collect for it), for all sums due during the term of this agreement (based upon estimated retail prices plus twenty percent to cover Microsoft’s extra administration costs). (iii) Microsoft accepts two payment options from its distributor/reseller under this agreement: equal annual installments or lump sum payment. However, other payment plans can be arranged between Customer and the reseller. e. Pay for orders. Customer must pay its reseller for the Products ordered. f. Changing a reseller. If Customer discontinues its relationship with its reseller, Customer must choose a replacement reseller in Customer’s Defined Region. If Customer intends to change its reseller, Customer must notify Microsoft and the former reseller in writing on a form that Microsoft provides at least 30 days prior to the date on which the change is to take effect. 5. Making copies of Products and re-imaging rights. a. General. Customer may make as many copies of Products as it needs to distribute them within the Enterprise. Copies must be true and complete (including copyright and trademark notices) from master copies obtained from a Microsoft approved fulfillment source. Customer may use a third party to make these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to make reasonable efforts to notify its employees, agents and other individuals who use the Products that the Products are licensed from Microsoft and subject to the terms of this agreement. b. Right to re-image. In certain cases, re-imaging is permitted using the Product media. If the Microsoft Product is licensed (1) from an original equipment manufacturer (OEM), (2) as full packaged Product through a retail source, or (3) under another Microsoft program, then media provided under this agreement may generally be used to create images for use in place of copies provided through that separate source. This right is conditional upon the following: (i) Separate Licenses must be acquired from the separate source for each Product that is re-imaged. (ii) The Product, language, version, and components of the copies made must be identical to the Product, language, version, and all components of the copies they replace, and the number of copies or instances of the re-imaged Product permitted remains the same. (iii) Except for copies of an operating system and copies of Products licensed under another Microsoft program, the Product type (e.g., upgrade or full License) re-imaged must be identical to the Product type from the separate source. (iv) Customer must adhere to any Product-specific processes or requirements for re-imaging identified in the Product List. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 9 of 13 Document X20-13976 Re-imaged Products remain subject to the terms and use rights of the License acquired from the separate source. This subsection does not create or extend any warranty or support obligation. 6. Transferring and reassigning Licenses. a. License transfers. License transfers are not permitted, except that Customer may transfer fully-paid, perpetual licenses to: (i) an Affiliate located in the same Defined Region as Customer, or (ii) a third party solely in connection with the transfer of hardware or employees to whom the licenses have been assigned as part of (1) a divestiture of an Affiliate or a division of an Affiliate or (2) a merger involving Customer or an Affiliate. b. Notification of License transfer. Customer must notify Microsoft of a License transfer by completing a license transfer form, which can be obtained from http://www.microsoft.com/licensing/contracts and sending the completed form to Microsoft before the License transfer. No License transfer will be valid unless Customer provides to the transferee, and the transferee accepts in writing, the applicable Use Rights, use restrictions, limitations of liability (including exclusions and warranty provisions), and the transfer restrictions described in this section. Any License transfer not made in compliance with this section will be void. c. Internal Assignment of Licenses and Software Assurance. Licenses and Software Assurance must be assigned to a single user or device within the Enterprise. Licenses and Software Assurance may be reassigned within the Enterprise as described in the Use Rights. 7. Term and termination. a. Effective Date. This agreement will be effective on the date it is accepted by Microsoft unless a previous agreement or authorization number is provided. In that case, the effective date will be one day following the expiration of the previous agreement or authorization number. b. Term. This agreement ends 36 full calendar months from the effective date (first term). Microsoft will provide Customer prior written notice advising of the renewal options. c. Termination for cause. Either party may terminate this agreement only in the event of a material breach or default of an obligation by the other party. Except where the breach is by its nature not curable within 30 days, the terminating party must give the other party 30 days prior written notice and opportunity to cure. d. Effect of termination or expiration. When this agreement expires or is terminated, Customer must order all copies of Products it has run for which it has not previously submitted an order. All unpaid payments for Licenses immediately become due and payable. 8. How to renew this agreement. a. Renew Software Assurance by extension. Customer has a one-time option to renew this agreement and place additional orders under it for one additional term of 36 full calendar months. However, if Microsoft makes a change to the Open Value program, Customer may have to enter into a new agreement. If Customer wishes to renew Software Assurance after the first term expires, it must submit a renewal order prior to or at the expiration of the first term. The new Software Assurance coverage will start the day after the first term ends. The renewal order must include: (i) Software Assurance coverage for Products run under an organization-wide option equal to the current number of desktops; and DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 10 of 13 Document X20-13976 (ii) Software Assurance coverage for all Products run under a non-organization-wide option for which Customer wants to continue Software Assurance. b. Renew Software Assurance in new agreement. If Customer wishes to renew Software Assurance after the agreement expires, it must submit a new order prior to or at the expiration of the agreement term. The new Software Assurance coverage will start the day after the existing agreement ends. 9. Confidentiality. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand to be confidential, including Customer Data and the terms of Microsoft agreements. Confidential Information does not include information that: (a) becomes publicly available without a breach of this agreement, (b) was lawfully known or received by the receiving party without an obligation to keep it confidential, (c) is independently developed, or (d) is a comment or suggestion one party volunteers about the other’s business, products or services. Each party will take reasonable steps to protect that other party’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship under this agreement. Neither party will disclose that information to third parties, except to its employees, Affiliates, resellers, contractors, advisors and consultants (collectively, “Representatives”) and then only on a need- to-know basis under nondisclosure obligations at least as protective as this agreement. Each party remains responsible for the use of the Confidential Information by its Representatives and in the event of the discovery of any unauthorized use or disclosure, must promptly notify the other party. A party may disclose the other party’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order. The obligations in this section apply for Customer Data until it is deleted from the Online Services, and for all other Confidential Information, for a period of five years after the Confidential Information is received. 10. Warranties. a. Limited warranties and remedies. (i) Software. Microsoft warrants that each version of the Software will perform substantially as described in the applicable Microsoft user documentation for one year from the date Customer is first licensed for that version. If it does not and Customer notifies Microsoft within the warranty term, then Microsoft will, at its option (1) return the price paid by Customer for the Software license, or (2) repair or replace the Software. (ii) Online Services. Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are in the SLA. The above are Customer’s sole remedies for breach of the warranties in this section. b. Exclusions. The warranties in this section 10 do not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, pre-release, or beta Products, or to components of Products that Customer is permitted to redistribute. c. DISCLAIMER. Microsoft provides no other warranties or conditions and disclaims any other express, implied or statutory warranties, including warranties of merchantability, fitness for a particular purpose, satisfactory quality, title and non-infringement. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 11 of 13 Document X20-13976 11. Defense of third party claims. a. By Microsoft. Microsoft will defend Customer against any claims made by an unaffiliated third party; (1) that any Product or Fix infringes that party’s patent, copyright, or trademark or makes intentional unlawful use of its Trade Secret; or (2) that arises from Microsoft’s provision of an Online Service in violation of section 14(l)(i) below. Microsoft will pay the amount of any resulting adverse final judgment or approved settlement. This does not apply to claims or awards based on (i) Customer Data; (ii) non-Microsoft software; (iii) modifications to a Product or Fix Customer makes or any specifications or materials Customer provides; (iv) Customer’s combination of a Product or Fix with (or damages based on the value of) a non-Microsoft product, data, or business process; (v) Customer’s use of a Microsoft trademark without express, written consent or the use or redistribution of a Product or Fix in violation of this agreement; (vi) Customer’s continued use of a Product or Fix after being notified to stop due to a third party claim; or (vii) Products or Fixes that are provided free of charge. b. By Customer. Customer will defend Microsoft against any claims made by an unaffiliated third party: (1) that any Customer Data or non-Microsoft software Microsoft hosts on Customer's behalf infringes the third party's patent, copyright, or trademark or makes unlawful use of its Trade Secret; or (2) that arises from violation of section 14(l)(i) below, a violation of the legal rights of others, or unauthorized access to or disruption of any service, data, account, or network in connection with the use of the Online Services; or (3) that are based on items excluded from Microsoft’s defense obligations in section 11(a) above. Customer will pay the amount of any adverse final judgment or approved settlement resulting from a claim covered by this section 11(b). c. Rights and remedies in case of possible infringement or misappropriation. If Microsoft reasonably believes that a claim under this section may result in a legal bar prohibiting Customer’s use of the Product or Fix, Microsoft will seek to obtain the right for Customer to keep using it or modify or replace it with a functional equivalent, in which case Customer must discontinue use of the prior version immediately. If these options are not commercially reasonable, Microsoft may terminate Customer’s right to the Product or Fix and refund any amounts Customer has paid for those rights to Software or Fixes and, for Online Services, any amount paid for a usage period after the termination date. d. Other terms. The party being defended under this section 11 must notify the other party promptly of any claim subject to this section; give the other party sole control over the defense or settlement; and provide reasonable assistance in defending the claim. The party providing the protection will reimburse the other party for reasonable out of pocket expenses that it incurs in providing assistance. Any settlement must be approved in writing by the defending party. The remedies provided in this section 11 are the exclusive remedies for the claims described in this section. 12. Limitation of liability. a. The total liability of each party, including its Affiliates, and its contractors, for all claims arising under this agreement is limited to direct damages up to the following amounts: (1) for each Product other than Online Services, the amount Customer was required to pay for the Product and (2) for Online Services, the amount Customer paid for the Online Service during the 12 months before the cause of action arose; but in no event will a party’s aggregate liability for any Online Service exceed the total amount paid for that Online Service. In the case of Products provided free of charge or previews, Microsoft’s liability is limited to direct damages up to U.S. $5,000. These limitations apply regardless of whether the asserted liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. b. Affiliates and contractors. Microsoft and Customer each agree not to bring any action against the other’s Affiliates or contractors in respect of any matter disclaimed on their behalf DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 12 of 13 Document X20-13976 in this agreement. Each party will indemnify the other in the event of any breach of this provision. c. EXCLUSION OF CERTAIN DAMAGES. Neither party nor their Affiliates or contractors will be liable for any indirect, consequential, special or incidental damages, or damages for lost profits, revenues, business interruption, or loss of business information in connection with this agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. d. The limits and exclusions in this section 12 do not apply to either party’s (1) obligations under section 11 “Defense of third party claims”, or (2) liability for violation of its confidentiality obligations (except obligations related to Customer Data) or the other party’s intellectual property rights. 13. Verifying Compliance. Customer must keep accurate and complete records relating to all use and distribution of the Products by Customer and its Affiliates. Microsoft may request that Customer conduct an internal audit of all Microsoft Products in use throughout Customer’s organization, comparing the number of Products in use to the number of effective Licenses issued in its name. Following any audit, Customer agrees to deliver to Microsoft a written statement signed by its authorized representative, certifying that either (1) it has sufficient Licenses to permit all usage disclosed by the audit, or (2) it has ordered sufficient Licenses to permit all usage disclosed by the audit. By requesting an internal audit, Microsoft does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law, including conducting an onsite audit. 14. Miscellaneous. a. Notices. Notices to Microsoft must be sent to the Microsoft address listed in this agreement. Notices must be in writing and will be treated as delivered on the date shown on the return receipt or on the courier or fax confirmation of delivery. Microsoft may provide information to Customer about upcoming ordering deadlines, services and subscription information in electronic form, including by email to contacts provided by Customer. Emails will be treated as delivered on the transmission date. b. Assignment. Customer may not assign this agreement either in whole or in part. c. No transfer of ownership. Microsoft does not transfer any ownership rights in any licensed Product. The Products are protected by copyright and other intellectual property rights laws and international treaties. d. Order of precedence. In the case of a conflict between any documents identified in this agreement that is not resolved expressly in those documents, their terms will control in the following order of descending priority: (1) these terms and conditions and the accompanying signature form; (2) the Product List; (3) the Use Rights; and (4) all orders submitted under this agreement. The terms of any purchase order or any general terms and conditions Customer maintains do not apply. e. Applicable law. The terms of this agreement entered into with any Microsoft Affiliate located outside of Europe will be governed by and construed in accordance with the laws of the State of Washington and federal laws of the United States. The terms of each agreement entered into with a Microsoft Affiliate located in Europe will be governed by and construed in accordance with the laws of Ireland. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not govern this agreement. f. Severability. If any provision in this agreement is found unenforceable, the balance of the agreement will remain in full force and effect. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757 OV2015Agr(AOC)NA(ENG)(Feb2015) Page 13 of 13 Document X20-13976 g. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver. Any waivers must be in writing and signed by the waiving party. h. Survival. Provisions regarding ownership and license rights, Use Rights, restrictions on use, evidence of perpetual licenses, transfer of licenses, warranties, defense of third party claims, limitations of liability, confidentiality, compliance verification, obligations on termination or expiration and the other provisions in this section entitled “Miscellaneous” will survive termination or expiration of this agreement. i. Resellers and other third parties cannot bind Microsoft. Resellers and other third parties do not have authority to bind or impose any obligation or liability upon Microsoft. j. Use of contractors. Microsoft may use contractors to perform services, but will be responsible for their performance subject to the terms of this agreement. k. Customer’s responsibility for others using the Product; third parties that may benefit from this agreement. Customer must use reasonable efforts to make its employees, agents, Affiliates, and others using the Product aware that the Product may be used only according to this agreement. Customer is responsible for the acts and omissions of any people or businesses that make, install, or run copies of the Product. Certain sections of this agreement are for the benefit of Microsoft Affiliates. As a result, Microsoft and its Affiliates are entitled to enforce this agreement. Except for Microsoft Affiliates, this agreement does not create any enforceable rights by anyone other than Microsoft and Customer. Any representation or agreement made by Microsoft’s Affiliates that would change the terms of this agreement must be in writing and signed by Microsoft’s authorized representative. l. Compliance with applicable laws, privacy and security. (i) Microsoft and Customer will each will comply with all applicable laws and regulations (including applicable security breach notification law). However, Microsoft is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not also generally applicable to information technology services providers. (ii) Customer consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. Customer will obtain all required consents from third parties (including Customer’s contacts, resellers, distributors, administrators, and employees) under applicable privacy and data protection law before providing personal information to Microsoft. (iii) Personal information collected through Products (1) may be transferred, stored and processed in the United States or any other country in which Microsoft or its contractors maintain facilities and (2) will be subject to the privacy terms specified in the Use Rights. Microsoft abides by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union, the European Economic Area, and Switzerland. m. U.S. export jurisdiction. Products and Fixes are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end- user, end-use and destination restrictions by U.S. and other governments related to Microsoft products, services and technologies. For additional information related to Microsoft compliance with export rules, see http://www.microsoft.com/exporting/. n. Natural disaster. In the event of a natural disaster, Microsoft may provide additional assistance or rights by posting them on http://www.microsoft.com at such time. DocuSign Envelope ID: C820D5DF-B994-434E-AA34-D364668C2757