CITY OF SIMI VALLEY
STAFF REPORT
Nov
ember 3, 2025
To: Cit
y Council
From: D
epartment of Administrative Services,
Carolyn Johnson, Director of Administrative Services
Subj
ect: Approve Issuance of a Purchase Order to Dell Marketing L.P. for the Microsoft Enterprise Agreement’s third annual payment.
Staff Recommendation
It
is recommended that the City Council:
1. Appr
ove the issuance of a Purchase Order to Dell Marketing L.P. for $247,494.78 (Attachment A) for the purchase of Microsoft licensing products for the period of January 1, 2026, through December 31, 2026, utilizing Riverside County Microsoft Enterprise Agreement No. 8084445; and
2. Aut
horize the City Manager, or designee, to amend related documents (in a form approved by the City Attorney) to incorporate additional features, services, and increase the amount up to $288,508.55, consistent with the originally approved three-year (3) not-to-exceed amount of $865,527.
Background
Th
e City of Simi Valley (City) has standardized its network and productivity software on Microsoft, and these licenses allow the City the right to use the latest Microsoft products.
Microsoft provides maintenance benefits, cloud- based services, technical support, and online training, as well as simplifying license management to ensure compliance with Microsoft’s licensing policies.
The M
icrosoft Enterprise Agreement is a cooperative purchasing contract managed by Riverside County that allows public agencies to obtain volume- discounted software licensing. Dell Marketing L.P. serves as the City’s Licensing Solution Partner (LSP), which is an authorized reseller approved by Microsoft to manage enterprise licensing agreements.
In D
ecember 2023, the City entered into a three- year (3) cooperative agreement with SoftwareOne, Inc., PSA-0001530, an authorized Licensing Solution Partner (LSP ), to purchase Microsoft software and services through Riverside County Microsoft Enterprise Agreement No. 8084445. The agreement included an annual subscription in the amount of $250,877, plus a 15% contingency of $37,632 for future Microsoft technology initiatives, for a total not-to-exceed amount of $865,527 over three (3) years.
AGENDA I
TEM NO.
Consent (2)
During the second year of the agreement, the City was informed that SoftwareOne, Inc. would not renew its cooperative agreement with Riverside County. On December 2, 2024, the City Council authorized the transition from SoftwareOne Inc. to Dell Marketing L.P. (Dell) under LSP Agreement, (Attachment B), as the City’s authorized Microsoft licensing reseller. A ll terms and provisions of the original agreement were transferred from Software One Inc. to Dell (Attachment C). The LSP Agreement with Dell remains in effect through December 31, 2026. T he third annual subscription payment for Microsoft licensing for the period of January 1 to December 31, 2026 , is due under the new agreement. By transitioning to Dell, the City secured lower annual subscription pricing in Year Three (3) compared to the prior LSP. These savings will be used to offset the increased cost of additional Microsoft features and cloud- based services, allowing the City to expand capabilities while remaining within the original budget authority.
Discussion
Over the last few years, the City has standardized operations with Microsoft software for its 612 users, 110 servers, email services, email spam/virus protection, and productivity tools such as Teams, SharePoint, OneDrive, and Office applications . The City has experienced productivity gains with the updated software, as it is more stable and easier to use. The 15% contingency originally approved by the City Council provides flexibility to address the following:
• U nforeseen changes to Microsoft’s pricing model;
• Implementation of cloud- based features (Teams, SharePoint, OneDrive, and Exchange); and/or
• Enhanced security and eDiscovery requirements.
Maintaining this licensing ensures uninterrupted access to essential City systems that support public safety, permitting, payroll, email, and document management functions across all departments.
Dell’s current LSP agreement p rovides Microsoft software products at a substantially discounted rate. Although the City is expanding its feature set, the negotiated pricing with Dell is lower than what the City previously paid under SoftwareOne. As a result, the City remains within the original three- year (3) not-to-exceed amount of $865,527. To benefit from such discounts and minimize interruptions to City operations, staff recommends that the City Council approve the issuance of a purchase order for Year Three (3) of Microsoft licensing products through December 31, 2026, and authorize the City Manager to utilize the contingency up to $288,508.55. The Dell LSP agreement expires on October 31, 2027, and will renew from November 1, 2027, through October 31, 2030, if Riverside County exercises its renewal option with Microsoft for its Enterprise Agreement No.8084445. If Dell does not renew, the City would be required to transfer its enrollment to a new LSP pursuant to the transfer terms set by Microsoft and the Enterprise Agreement.
2 Continuation of the third year of the Dell LSP agreement will allow staff sufficient time to evaluate the renewal terms, pricing, and scope, and return to the City Council a recommendation on whether to enter into a new three-year (3) LSP agreement under the Riverside County Microsoft Enterprise Agreement.
Financial Impact
The cost of this action was included in the FY 2025-26 Adopted Budget under the Non- Departmental Information Services maintenance and cloud services account s. This purchase remains within the City Council’s previously approved three-year (3) not-to- exceed amount of $865,527. No additional appropriation is required.
City Council Priority
This item supports one of the City Council’s goals or pillars of excellence under Excellent City Government as outlined in the City Council priorities.
Suggested Motion
I move that the City Council:
1. Approve the issuance of a Purchase Order to Dell Marketing L.P. of $247,494.78 (Attachment A) for the purchase of Microsoft licensing products for the period of January 1, 2026, through December 31, 2026, utilizing Riverside County Microsoft Enterprise Agreement No. 8084445; and
2. Authorize the City Manager, or designee, to amend related documents (in a form approved by the City Attorney) to incorporate additional features, services, and increase the amount up to $288,508.55, consistent with the originally approved three-year (3) not-to-exceed amount of $865,527.
Summary
In December 2023, the City entered into a three- year (3) agreement with SoftwareOne, Inc., an authorized Licensing Solution Partner (LSP), , to purchase Microsoft software and services through the Riverside County Microsoft Enterprise Agreement No. 8084445, which is set to expire on December 31, 2026. When SoftwareOne, Inc. chose not to renew its agreement with Riverside Count y, the City Counil, on December 2, 2024, authorized the transition to Dell Marketing L.P. as the City ’sauthorized reseller offering Microsoft Licensing. Staff now recommends that the City Council approve the issuance of a purchase order to Dell Marketing LP in the amount of $247,494.78 and authorize the City Manager to amend the purchase order up to $288,508.55, consistent with the original three-year (3) not-to-exceed amount of $865,527.
Prepared by: Barbara Wisely, Principal Information Services Analyst
3 Attachments
Attachment A – Dell Annual Payment-Y2TU-Y3ANNUAL
Attachment B – Dell Marketing L.P., LSP Agreement ITRAC-00934 Attachment C – Change of Reseller Form
4 Dell Customer Communication - Confidential#
Annual Billing Microsoft Enterprise 6
City of Simi Valley
Date Updated Enrollment # Start Date End Date Due Date
07/28/2025 88231264 01/01/2024 12/31/2026 12/15/2025
PO Number
Scheduled Bill
Date Part Number Description Quantity Price Extended Amount Coverage
Start Date
Coverage
End Date
RQ2025119221438162 01/01/2026 076-01912 Project Standard ALng SA 1 $126.06 $126.06 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 7NQ-00292 SQL Server Standard Core ALng SA 2L 36 $634.22 $22,831.92 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 9EA-00273 Win Server DC Core ALng SA 16L 15 $989.92 $14,848.80 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 6VC-01254 Win Remote Desktop Services CAL ALng SA UCAL 30 $23.30 $699.00 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 3GU-00001 Defender O365 P1 GCC Sub Per User 612 $17.88 $10,942.56 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 AAD-34700 M365 G3 Unified FSA Renewal GCC Sub Per User 589 $321.36 $189,281.04 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 AAD-34704 M365 G3 Unified FUSL GCC Sub Per User 23 $378.00 $8,694.00 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 TK7-00002 O365 Advanced Compliance GCC Sub Per User 1 $71.40 $71.40 01/01/2026 12/31/2026 RQ2025119221438162 01/01/2026 NYH-00001 Teams AC with Dial Out US/CA GCC Sub Add-on 612 $0.00 $0.00 01/01/2026 12/31/2026 Annual Billing Total $247,494.78
Amounts listed here are the upcoming annual invoices for the following agreement year. PO # listed is the same from the previous year and can be changed upon request. #Internal Use - Confidential
Attachment A
5 LICENSED SUPPORT PROVIDER (LSP)
AGREEMENT No. ITARC-00934
AGREEMENT # ITARC-00934
For
MICROSOFT PRODUCTS AND SERVICES
UNDER MICROSOFT EA NO. 8084445
BETWEEN
COUNTY OF RIVERSIDE
And
DELL MARKETING, L.P.
This Agreement is entered between the COUNTY OF RJVERSIDE , a political subdivision of the State of California, (herein referred to as "COUNTY"), and Dell Marketing, L.P., A Texas Limited Partnership authorized to conduct business in the State of California (herein referred to as "LSP") of Microsoft Licensing Solution Provider, effective from November 01.2024 and continues in effect through October 31, 2027, based on LSP's response to RFQ no. IT ARC-532 for Microsoft products and services under Microsoft EA no. 8084445. The parties agree as follows:
1. LSP's sale and County's use of the Microsoft Software and Online Services performed by Microsoft shall be subject to the terms and conditions set forth in the Microsoft Enterprise Agreement (8084445) between the County and Microsoft. LSP shall not be responsible or liable for Microsoft's performance of its obligations under the Enterprise Agreement.
2. Period of Performance:
This Agreement shall be effective from November O I .2024 and continues in effect through October 31 , 2027, with the option to renew for an additional three-year period expiring on October 31, 2030 , with no obligation by the County of Riverside to purchase any specified amount of goods or services.
In addition , the County may at any time choose to transfer the enrollment from one LSP to another LSP pursuant to the transfer terms set by Microsoft.
The period of performance for the enrollment with the LSP may be for up to a three-year term with the option to renew the enrollments with contracted LSP through the LSP contract expiration date.
3. Compensation
The COUNTY shall pay the LSP for products at the cost as stated in Exhibit A, incurred in accordance with the terms of this Agreement. The COUNTY is not responsible for any fees or costs incurred above or beyond the contracted amount and shall have no obligation to purchase any specified amount of services or products.
Non-Appropriations: The COUNTY obligation for payment of this Agreement beyond the current fiscal year end is contingent upon and limited by the availability of COUNTY funding from which payment can be made , and invoices shall be rendered "monthly " in arrears. In the State of California , Government agencies are not allowed to pay excess interest and late charges , per Government Codes , 1 Revision I /06/2021
SEP 1 0 2024 3 -~:2
Attachment B
6 AGREEMENT # ITARC-00934
Section 926.10. No legal liability on the pat1 of the COUNTY shall arise for payment beyond June 30 of each calendar year unless funds are made available for such payment. In the event that such funds are not forthcoming for any reason , COUNTY shall immediately notify CONTRACTOR in writing ; and this Agreement shall be deemed terminated , have no further force , and effect.
4. Hold Harmless/Indemnification:
4.1 LSP shall indemnify and hold harmless the County of Riverside , its Agencies , Districts , Special Districts and Departments , their respective directors , officers, Board of Supervisors , elected and appointed officials , employees , agents and representatives (individually and collectively hereinafter referred to as Indemnitees) from any liability , action , claim or damage whatsoever, based or asserted upon any services, or acts or omissions, of LSP, its officers, employees , subcontractor, agents or representatives arising out of or in any way relating to this Agreement, including but not limited to property damage , bodily injury , or death or any other element of any kind or nature. LSP shall defend the Jndemnitees at its sole expense including all costs and fees (including , but not limited, to attorney fees , cost of investigation, defense and settlements or awards) in any claim or action based upon such acts , omissions or services.
4.2 With respect to any action or claim subject to indemnification herein by LSP. LSP shall , at their sole cost , have the right to use counsel of their own choice and shall have the right to adjust , settle , or compromise any such action or claim without the prior consent of County; provided, however , that any such adjustment , settlement or compromise in no manner whatsoever limits or circumscribes LSP indemnification to Indemnitees as set forth herein .
4.3 LSP obligation hereunder shall be satisfied when LSP has provided to County the appropriate form of dismissal relieving county from any liability for the action or claim involved. 5 Termination:
5.1 County may terminate this Agreement without cause upon thirty (30) days written notice served upon the LSP stating the extent and effective date of termination.
5.2 If the LSP is in default , refuses or fails to comply with the terms of this Agreement or fails to make progress that may endanger performance and does not immediately cure such failure after 30 days after written notice is given ·. The County may terminate this agreement for Cause. In the event of such termination , the County may proceed with the work in any manner deemed proper by County.
5.3 LSP rights under this Agreement shall terminate (except for fees accrued prior to the date of termination) upon dishonesty or a willful or material breach of this Agreement by LSP; or in the event of LSP unwillingne ss or inability for any reason whatsoever to perform the terms of this Agreement.
6. Alteration or Changes to the Agreement
The Board of Supervisors and the County Purchasing Agent and/or his designee is the only authorized County representatives who may at any time , by written order , alter this Agreement. If 2 Revision I /06/2021
7 AGREEMENT# ITARC-00934
any such alteration causes an increase or decrease in the cost of, or the time required for the performance under this Agreement, an equitable adjustment shall be made in the Agreement price or delivery schedule, or both, and the Agreement shall be modified by written amendment accordingly.
7. Notices
All correspondence and notices required or contemplated by this Agreement shall be delivered to the respective parties at the addresses set forth below and are deemed submitted two days after their deposit in the United States mail, postage prepaid:
COUNTY
Riverside County Information Technology
Attn: Procurement Contract Specialist
3450 14th Street
Riverside, CA 9250 I
8. Insurance
LSP
Dell Marketing, L.P.
Attn: Sarina Konnoff
One Dell Way
Round Rock, TX 78682
[email protected]
[email protected]
Without limiting or diminishing the LSP'S obligation to indemnify or hold the COUNTY harmless, LSP shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverage ' s during the term of this Agreement. As respects to the insurance section only, the COUNTY herein refers to the County of Riverside, its Agencies, Districts, Special Districts, and Departments, their respective directors, officers, Board of Supervisors , employees, elected or appointed officials, agents, or representatives as Additional Insureds.
A. Workers' Compensation:
If the LSP has employees as defined by the State of California, the LSP shall maintain statutory Workers' Compensation Insurance (Coverage A) as prescribed by the laws of the State of California. Policy shall include Employers' Liability (Coverage B) including Occupational Disease with limits not less than $1,000,000 per person per accident. The policy shall be endorsed to waive subrogation in favor of The County of Riverside. Policy shall name the COUNTY as Additional Insureds.
B. Commercial General Liability:
Commercial General Liability insurance coverage, including but not limited to, premises liability, unmodified contractual liability, products and completed operations liability, personal and advertising injury, and cross liability coverage , covering claims which may arise from or out of LSP'S performance of its obligations hereunder. Policy shall name the COUNTY as Additional Insured. Policy ' s limit of liability shall not be less than $2,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement 3 Revision I /06/202 1
8 AGREEMENT# ITARC-00934
or be no less than two (2) times the occurrence limit. Policy shall name the COUNTY as Additional Insureds.
C. Insurance Requirements for IT Contractor Services:
LSP shall procure and maintain for the duration of the contract insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the work hereunder by the LSP , its agents, representatives, or employees. LSP shall procure and maintain for the duration of the contract insurance claims arising out of their services and including, but not limited to loss, damage , theft or other misuse of data, infringement of intellectual property , invasion of privacy and breach of data.
Cyber Liability Insurance, with limits not less than $2,000 ,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by LSP in this agreement and shall include, but not limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress , invasion of privacy violations, information theft , damage to or destruction of electronic information , release of private information , alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
If the LSP maintains broader coverage and/or higher limits than the minimums shown above, the County requires and shall be entitled to the broader coverage and/or higher limits maintained by the LSP. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the County. Policy shall name the COUNTY as Additional Insureds .
D. General Insurance Provisions - All lines:
I) Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California and have an A M BEST rating of not less than A: VIII (A:8) unless such requirements are waived, in writing , by the County Risk Manager. If the County 's Risk Manager waives a requirement for a particular insurer such waiver is only valid for that specific insurer and only for one policy term.
2) The LSP must declare its insurance self-insured retention for each coverage required herein.
If any such self-insured retention exceeds $500 ,000 per occurrence each such retention shall have the prior written consent of the County Risk Manager before the commencement of operations under this Agreement. Upon notification of self-insured retention unacceptable to the COUNTY, and at the election of the Country ' s Risk Manager, LSP'S carriers shall either ; I) reduce or eliminate such self-insured retention as respects this Agreement with the COUNTY , or 2) procure a bond which guarantees payment of losses and related investigations , claims administration , and defense costs and expenses. 4 Revision I /06/202 I
9 AGREEMENT# ITARC-00934
3) LSP shall cause LSP'S insurance carrier(s) to furnish the County of Riverside with either 1) a properly executed original Certificate(s) of Insurance and certified original copies of Endorsements effecting coverage as required herein , and 2) if requested to do so orally or in writing by the County Risk Manager , provide original Certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. Further , said Certificate(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that a minimum of thirty (30) days written notice shall be given to the County of Riverside prior to any material modification , cancellation, expiration or reduction in coverage of such insurance . If LSP insurance carrier(s) policies does not meet the minimum notice requirement found herein , LSP shall cause LSP ' s insurance carrier(s) to furnish a 30 day Notice of Cancellation Endorsement. 4) In the event of a material modification , cancellation, expiration , or reduction in coverage, this Agreement shall terminate forthwith , unless the County of Riverside receives , prior to such effective date , another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies , including all endorsements and attachments thereto evidencing coverage's set forth herein and the insurance required herein is in full force and effect. LSP shall not commence operations until the COUNTY has been furnished original Certificate (s) oflnsurance and certified original copies of endorsements and if requested , certified original policies of insurance including all endorsements and any and all other attachments as required in this Section. An individual authorized by the insurance carrier to do so on its behalf shall sign the original endorsements for each policy and the Certificate of Insurance .
5) It is understood and agreed to by the parties hereto that the LSP's insurance shall be construed as primary insurance, and the COUNTY'S insurance and/or deductibles and/or self-insured retention ' s or self-insured programs shall not be construed as contributory. 6) If, during the term of this Agreement or any extension thereof , there is a material change in the scope of services; or, there is a material change in the equipment to be used in the performance of the scope of work ; or, the term of this Agreement, including any extensions thereof , exceeds five (5) years; the COUNTY reserves the right to adjust the types of insurance and the monetary limits of liability required under this Agreement , if in the County Risk Management's reasonable judgment , the amount or type of insurance carried by the LSP has become inadequate.
7) LSP shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement.
8) The insurance requirements contained in this Agreement may be met with a program(s) of self-insurance acceptable to the COUNTY.
9) LSP agrees to notify COUNTY of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement 5 Revision I /06/202 I
10 AGREEMENT# ITARC-00934
9. General:
9.1 This Agreement, including any attachments or exhibits, constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous representations, proposals, discussions and communications, whether oral or in writing. This Agreement may be changed or modified only by a written amendment signed by authorized representatives of both parties.
9.2 This Agreement shall be governed by the laws of the State of California. Any legal action related to the performance or interpretation of this Agreement shall be filed only in the Superior Court of the State of California located in Riverside, California , and the parties waive any provision of law providing for a change of venue to another location. In the event any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
9.3 The following documents are attached to and incorporated into this Agreement:
Exhibit A: Scope and pricing.
Exhibit B: LSP Reporting of Active Enrollments.
Exhibit C: Microsoft LSP Participation Form.
Exhibit D: Microsoft EA Benefits for Government Agencies.
Exhibit E: Microsoft Enterprise Agreements and Amendments.
EI) Microsoft Enterprise Agreement No. 8084445.
E2) Microsoft Select Plus Agreement No. 7756479.
E3) Amendments No. I - EA Custom Terms CTM (Document No. CTM-CPT-OPT-FWK) E4) Amendments No. 2- EA Custom Terms (Document No. CTM-FWK-CTC-AGR).
9.4 In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set fo1th in any of the attachments , purchase order(s) , or other document relating to the transactions contemplated by this Agreement , the terms and conditions set faith in this Agreement shall prevail.
9.5 This Agreement may be executed in any number of counterpaits , each of which will be an original , but all of which together will constitute one instrument. Each party of this Agreement agrees to the use of electronic signatures , such as digital signatures that meet the requirements of the California Uniform Electronic Transactions Act (("CUETA ") Cal. Civ. Code§§ 1633.1 to 1633.17) , for executing this Agreement. The parties further agree that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means an electronic sound , symbol , or process attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the electronic record pursuant to the CUETA as amended from time to time.
The CUET A authorizes use of an electronic signature for transactions and contracts among parties 6 Revision I /06/2021
11 AGREEMENT# ITARC-00934
in California, including a government agency. Digital signature means an electronic identifier, created by computer, intended by the party using it to have the same force and effect as the use of a manual signature, and shall be reasonably relied upon by the patties. For purposes of this section, a digital signature is a type of"electronic signature" as defined in subdivision (i) of Section 1633.2 of the Civil Code.
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to execute this Agreement.
COUNTY OF RIVERSIDE, a political
subdivision of the State of California
By: ~~
Chuck Washington
Chair of the Board of Supervisors
Dated: 9 //~ /JOjl/
ATTEST:
Kimberly Rector
Clerk of the Board
Minh C. Tran
County Counsel
By~ ~M___
Pau~do
Deputy County Counsel
Dated:
Revision I /06/2021
DELL MARKETING, L.P., A Texas Limited
Partnership authorized to conduct business in the
State of California
By: /~a_-f ~ p&1f,J,/,o_,
Name: Katherine Castillo
Title: Paralegal Advisor
Dated: 07/16/2024
...... '
..... ' ....... .
7 :cl
m'
::D m
12 LSP's Scope and responsibilities
Exhibit A
Scope and pricing
AGREEMENT # ITARC-00934
1. The Licensed Support Provider (LSP) will resell all available Microsoft Licensed Support Provider (LSP) for Microsoft Master Microsoft Enterprise Agreement No. 8084445; Software Licensing , Software Support, Cloud Services such as Azure, Industry Solutions Delivery (ISO) formerly Microsoft Consulting Services (MCS), Microsoft Unified Support and Microsoft incident response. Microsoft Select Plus Agreement No. 7756479 .
2. The agreement with LSP as a LSP of the Microsoft Products and Services under Microsoft EA No. 8084445 is available for use by the County of Riverside and governmental agencies within the State of California . The LSP will serve as the liaison between the political entity for enrollments under the Microsoft EA.
3. The LSP agrees to extend the same pricing , similar terms, and conditions to every political entity, special district, in the State of California. It is understood that other entities shall make purchases in their own name, make direct payment, and be liable directly to the LSP of their choosing; and County shall in no way be responsible to any LSP for other entities ' purchases.
4. The LSP may remain the LSP for the Three 3-year duration of the Enrolled Affiliate's Enterprise Agreement Enrollment. All True-Ups during the 3-year enrollment (orders for new products, etc .) by Enrolled Affiliates are required to be submitted only through the Affiliate's selected LSP. Multiple LSP ' s cannot service a single Enterprise Agreement Enrollment. Enrolled Affiliate may at any time choose to transfer their current enrollment from one LSP to another LSP pursuant to the transfer terms set by Microsoft .
5. The Enrolled Affiliate shall work with the LSP to determine the annual payment, true-up commitment schedule defined in their enrollment.
6. Each Affiliate will communicate to the LSP the compensation terms applicable to their agreement.
7. The LSP will provide reports showing year to date annual spend according to Enrolled Affiliate ' s specifications. Frequency will be determined by each Enrolled Affiliate (ie: monthly , quarterly , etc.).
8. The LSP will provide reports of licenses purchased and added on to enrollment according to Enrolled Affiliate's specifications . (Intended for an enrollment that has licenses for multiple agencies within a governmental body - ie county , city , etc.) Frequency will be determined by each Enrolled Affiliate (ie:
monthly , quarterly , etc.).
9. The LSP will provide, at the Enrolled Affiliate's request , a licensing portal that allows the tracking of licenses beyond the capabilities of the Microsoft VLSC. This portal will show , but not be limited to, all licenses on the current enrollment , quantities of said licenses , track licenses at department/agency levels, transfer licenses to and from each department/agency, and have reporting functionalities. 8 Revision 1/06/2021
13 AGREEMENT# ITARC-00934
10. The LSP will provide training to the Enrolled Affiliate's Microsoft administrators on Microsoft portals such as the VLSC, Office 365, Azure, etc. within 30 days of receiving a purchase order for such products that introduce a new portal. LSP should outline what aspects of training they feel would be beneficial in their proposal.
11. The LSP will provide documentation to the Enrolled Affiliate within 90 days of when Microsoft has made a change to a license and advise of any grandfather or conversion rights within that same timeframe.
12. The LSP will provide a short synopsis of why an amendment is needed and the ramification of each amendment to an enrollment at the time of such amendment.
13. The LSP will provide an updated price list on an annual basis or when Microsoft changes price point , whichever is sooner, in an Excel spreadsheet to the Enrolled Affiliate. This price list must capture, at minimum , the following categories for each product: SKU, product description, MSRP, NET (Level D), LSP's uplift and contracted unit price.
14. The LSP shall provide a list of enrollments. The list of enrollments is due 30 days after the contract signature and on January 15th of each calendar year during the agreement period. This list will include the agency name , contact person , email and phone number and annual spend. The intent of this is to track how many agencies within the State of California piggyback off of the Master Agreement.
15. The LSP will be charged 1.00% of the annual enrollment sales amount to leverage the Riverside County Master Microsoft Agreement No .8084445 , and Select Plus Agreement No.7756479 , which payment includes Software Licensing , Software Support, Cloud Services such as Azure , Industry Solutions Delivery (ISO), Microsoft Consulting Services (MCS) , Microsoft Unified Support and Microsoft incident response. This administrative fee will be an annual fee, per enrollment inclusive of Affiliates Shadow Enrollments.
16. The Servicing LSP shall provide Microsoft Enterprise Support Services from Microsoft to assist customers leveraging this contract vehicle in operation of the technology acquired and assist Riverside Master Participants in maximizing the benefits of this investment.
17. The Servicing LSP shall provide the ability to for the acquisition of Microsoft services as the demand for individual product services or capabilities expand. The servicing LSP shall provide services to include Microsoft Unified, Industry Solutions Delivery (ISO), and Microsoft incident response. The Servicing LSP will have a valid Microsoft Master Services Agreement on file with Microsoft in order to resell Microsoft Unified Support , and Industry Solutions Delivery (ISO). Additionally , the contractor shall provide Microsoft dedicated Technical Support representatives and subject matter experts provided via the Microsoft enterprise agreement to support and assist Riverside County master participants in analyzing , architecting , implementing , managing, and operating solutions based on the licenses previously acquired or to be purchased in accordance with the terms of the Microsoft enterprise licensing program.
9 Revision 1/06/2021
14 AGREEMENT# ITARC-00934
18. LSP will be responsible for submitting a completed "Reporting of Active Enrollments" by January 15th of each year for the prior calendar year.
19. The County of Riverside Information Technology (RCIT) will invoice the Awarded LSP annually based on the enrollments verified from LSP Reporting of Active Enrollments.
20. Payment is due to Riverside County Information Technology thirty (30) days from invoice date.
21. The administrative fee shall not be included as an adjustment to LSP's Master Agreement pricing.
22. The administrative fee shall not be invoiced or charged to the Enrolled Affiliate.
23. Administrative fee checks shall be submitted to:
Revision I /06/2021
Riverside County Information Technology
Attn: Accounts Receivable
3450 14th Street, 4th Floor
Riverside , CA 9250 I
10 15
AGREEMENT# JTARC-00934
Pricing:
1. Microsoft Enterprise License Subscription and services Item Description Price Level Markup%
Enterprise Online Services** (including Full USLs, From SA 4.00 USLs , Add-ons and Step Ups) M365 E3 and ES, Enterprise Level D Mobility+ Security E3 and ES, Office 365 Enterprise EI or E3, Windows 10 Enterprise E3 or ES.
Enterprise Products (Office 365 Pro Plus, Windows I 0 Level D 4.00 Enterprise, Core CAL Suite, Enterprise CAL Suite).
Additional Products (M365 FI, M365 ES Compliance, M365 4.00 ES Security, Office 365 Enterprise Fl, Project Online, Visio Level D Online Plan I or Plan 2, Dynamics 365, Azure, SQL Server, Windows Server, etc)'.
Server and Tools Product (applies to Server and Cloud 4.00 Enrollments only) SharePoint Server, SQL Server, BizTalk Level D Server, Visual Studio, Core Infrastructure Suites, etc.
All products for Select Plus Agreement No.7756479. 4.00 Microsoft Unified Support Services 4.00
Microsoft Consulting Services 4.00
Microsoft Incident Response 4.00
2. License Support P1·ovider (LSP) Solution Area Specific Capability:
Solution Area Specific Capability Number Customer Reference? Size Number of successful customer production mail 100+ 10,000+ Yes deployments/migrations?
Number of successful customer production SharePoint 100+ 10,000+ Yes deployments /migrations?
Number of successful customer production Teams 100+ 10,000+ Yes deployments /migrations?
Number of successful customer production Teams 100+ 10,000+ Yes Voice deployments /PBX migrations?
Number of people with specialized expertise on 200+
technologies listed above
11 Revision 1/06/2021
16 LSP Name
RIVCO
Contract ID
Master
Enrollment
Revision 1/06/202 1
AGRE EMENT# ITARC-009 34
Exhibit B
LSP REPORTING OF ACTIVE ENROLLMENTS
MICROSOFT ENTERPRISE AGREEMENT No. 8084445
Company nam e
TBD
Annual
Sales Enrollment Reportin g
Enrollment Enrollment Start End Term : Enrollment Contact Number: Entity: Date : Date:
Calendar
Email: Year Contact:
County of XX/XX/ XX/XX
River side xxxx /XXXX John Doe
Enrollment
Contact Tel:
13 17
AGREEMENT# ITARC-00934
Exhibit C
MICROSOFT LSP PARTICIPATION FORM
Dell S'IM's'Nl'i"f{;; ommu nica t ior, - Con fi de nti al Chi& Informat ion O fficer
DARRYL POLK
Chie f Tec h nology Officer
TRACY TILLMAN
Deputy Director Adm in - IT
ANTHONY CHOGYOJI
Chie lnfom,aticn Secu rity O fficer
MARTIN PEREZ, ACIO
Enterp rise Applica tions Bureau
GUSTAVO VAZQUEZ , ACIO
Converged Commun krntic,ns Bureau
KARAN CHANDRAN, ACIO
Techno lc.gy Services Bu reau
:tvficrosoft LSP Participation Fonn
(RFQ # ITARC-00532 Attc1dnnent 2)
Comp lete this form and return to:
Attention : Linda Fakhouri
E-mai l: lfakh ouri@ri vco.o rg
Company Name : Dell Marke ting, L P _
Name: Sarin::i Konnoff
Address: One Dell Vvay'
City: Round Rock, TX Zip Code: 78682
Payment shou ld be made to :
Riverside County Information Technology
3450 14th Street, Fourth Floor
Riverside , CA 92501
County of Riverside TIN #: 95-6000930
Tille: Proposal M a n ager
Telephone#: 925-200-8506
Fa~ #:._N_/_A __________ .E mai l: Sar ina.Konnoff@De ll.com The Col1nty of Riverside is the host of the M icroso ft Master P..greement Jo. 8064445. All ques tions regarding the produc ts and licensing shou ld be directed to Microsoft _ By signing be low, I am agree ing lo pay the participation fees for each en rollment tha t is establis l1e-d by leverag in g the Coun ty of Ri1•erside Mtister Agreement in accordance to th e schedu le referenced on RFQ # ITARC- 005 32 tind tiny subsequen t contrnc ts and/ or amendments.
By signing helov1, I also agree tlrnt all enrollments will be submitted to Mic roso ft direct, lo report enrollmen t activit;• and comp l;r to the payment sched ule per RFO # ITARC- 00532 to Riverside Colmty lnformti lion T echnology.
Please reference the remitttince info rmation tihove for 'o\'llere to send the payment Failure to comp ly may resul t in the tiward being re sc inded.
(/ -
/<".( :,,,.•~'-" .. May 9, 2024
Signature Date
Sar ina Konnoff Propo sal M a nage r
Printed Name Title
Revision 1/06/2021
14 18
AGREEMENT# ITARC-00934
Exhibit D
Microsoft EA Benefits for Government Agencies
El Reduced Paperwork
Reduced number of separate documents to review - by consolidating amendments into a single document. Many of the amendments previously required are now built into the enrollment document.
Customers utilizing the County of Riverside EA Master Agreement may choose either an Enterprise Enrollment or a Server and Cloud Enrollment (or both) depending on their needs.
E2 Standard Pricing Across all platforms
Microsoft will provide LSP's (authorized EA LSPs on this contract) with Government Level-D, pricing off of published "LSP cost" all platforms. Azure discount is a factor of the consumption rate.
This will make it easy when calculating New, Additional product, and True-up purchases at the beginning or during your Enterprise Agreement Term. It also reduces possible confusion among partners.
E3 No charge Onboarding Services
Microsoft assisted on boarding is now a benefit of Offic e 365, Microsoft lntune, Azure AD Premium and Azure RM S. Eligible customers will receive guidance from a dedicated group of onboarding experts known as the Microsoft FastTrack Center (FTC) to onboard to these services. The FTC uses an onboarding approach known as FastTrack to help you, your IT Team, and or Partner, confidently onboard new users and capabilities. Programs are subject to change and/or evolve.
E4 No Charge Security Incident Assistance
Microsoft will engage special security teams in the event of an exploit if your organization leverages Microsoft security technologies as part of your enterprise agreement commitment. These teams will help you identify and stop the malicious attack and triage the incident. See your Microsoft Sales Executive for more details.
ES Raise and lower commitment for hosted services during the Enterprise Agreement Period You can raise your commitment for hosted services like 0365 , CRM, Azure during the current EA year and only commit to the remaining months in that year. Example: your anniversary for your Year-2 term is in November and your adding 100 Office 365 users in May. You will only be obligated to pay for the 6 months leading to your anniversary. Additionally, you can now true-down hosted services at your anniversary to the original commitment level as well.
E6 Additional Software Assurance benefits
• With New Version Rights , you can upgrade each Microsoft product license that is covered by active Software Assurance to the most recent version for no additional cost. When a new version of Microsoft Office is released during the term of your agreement, your licenses are automatically upgraded to the new version .
• Office Roaming Use Rights: Help expand end-user productivity and extend the value of your virtual desktop environment with Office Roaming Use Rights , which lets users with Software Assurance on Office, Project , or Visio remotely access their software on their virtual desktops from third-party devices.
15 Revision I /06/2021
19 AGREEMENT# ITARC-00934
• Spread Payments: Spread the costs of your License and Software Assurance purchase across three equal, annual sums versus one up-front payment to help reduce initial costs and aid in forecasting annual software budget requirements up to three years in advance. When you use the Spread Payments benefit, no interest or additional fees are incurred. You may also consider Microsoft Payment Solutions to help finance your technology needs, including software , services , partner products, and hardware. Although Microsoft Payment Solutions is not part of Software Assurance, you can choose it separate from , or in addition to, the Spread Payments benefit to create a customized payment structure.
• Step-Up Licensing: Volume Licensing customers with Software Assurance can migrate from a lower edition to a higher edition software product while maintaining their Software Assurance coverage on a given product. The Step-up License makes it easier for you to move from a lower level edition to a higher-level edition without incurring the full cost of licensing two separate editions of the software .
More information about the Software Assurance by products as listed above can be found at:
https://www .microsoft.com/ e n-us/Licensi ng/I ice nsi ng-progra ms/softwa re-assurance-by prod uct.aspx?83ffdda4-a 2 63-4123-9752-1122538c0a96 = True Revision I /06/2021
16 20
AGREEMENT# ITARC-00934
Exhibit E
Microsoft Enterprise Agreements and Amendments
EI) Microsoft Enterprise Agreement No. 8084445.
E2) Microsoft Select Plus Agreement No. 7756479.
E3) Amendments No. 1- EA Custom Terms CTM (Document No. CTM-CPT-OPT-FWK) E4) Amendments No. 2- EA Custom Terms (Document No. CTM-FWK-CTC-AGR). 17 Revision 1/06/2021
21 t'J
EJ Microsoft \/olu1r1e Licensing
Program Signature Form
MflNMBSA ll!llnh er 004-kaylee(I -S-04
Note: Enter the applicable active numbers m;sor.iaterl with the documents below. Mir.rosofl requirAs the associatecl active number be inclicated llere, or listed below as new.
For tile purposes of this form, ·customer" can mean tile siuning enlity, Enrollee! Affiliate, Govflrnrn,rnt Pm1ner, lnstit11tion, or other pm1y entering into a volum(') llr;onsing rrogr~m, agrccmAnl.
This si)1nature form ancl all conlracl clocuments identified in tile table below are entered into between the Customer and the Microsoft Affiliate signing, tis of the effective date ictentificd below . ·. ,.
t:·:;' .. _ • Gl'm1!~Jlum:i1l°J.·~i' ~/\k)
. ,.: .. ••.·.~,~-:: .Aij•· ,. . ---- , p,; .:;..•:.,1,:· .',1i. j. ,_. 1,;,;~-~-·;.,~ ; 1,•1111111 :-n• • ,m·~•;_,,g :1•-;,ji-'·,', . . . . ·,':1 , ,:1:~ . );.;.wi~M.~·..;: . . .---:- ~ •(!':!,. ,:" . '. ,.,· • EnterP-rise Agreement X20-10209
<Choose /\meement> Document Numbr:r or CoclP.
<Choose Aqrccmcnl> Docum<Jnl Number or Code
<Choose Agreemenl> ---------- · ---- · Document Number or Code <C,:l}oose ~g~eenler:,1> __ Document Number or Code .
<Choose Enrollment/Reqistration> bocurnent Nu1llber or' Cocie <Choose Enrollrrrenl/Reoistrntion> Doi::urnent Number or Cocle <Choose Enrollment/Reoislration> Document Number or Code <Clloose Enrolhnent/Reoistrat1on> Document Numl:,er or Code . -:£!:loose B1r})flmenl/Registration> Document Nurnber or Code Amendmen .t to Contract Documents - C-TM-CPT-dPf:FWK(new)__ . . - -· - I
I
' --·
Uy signing below, Cuslome.r and the Microsoft Arfillc1te agree lhc1t both parties (1) lmve received, read and understand the above co11lracl docu111ents, including any websites or doculllents incorporntecl by reference and any amendments and (2) agree to be bound by the terms of all such documents .
I
Name of Entily _(~nf, t I> . le~_e 1tity name)' Counly or Riverside S. , 1/ 11 - - ·-t 1gnahirc / .. • • .
Printed Fir~~ncl Last Name• R/c {,u; rd . 1-\l\; 1"
Printed Title 5 r. P1'0C().r-ew1-t111.;i- Cot1h-c,,.c;.,t SVe Crl\ I,~ Signature Date• o g/ -z 2 /_2_o_/_' !~----------
Tax ID
• indica/cs 111qrtirecl fielcl
P1c;,J«1111Si911f'o•111(MSSig,.,)(NA,L.il!lr1:)E:<l:lHA,MLltENG:,(A11u2-J1,1:, 22 -f-}•·,:\r.1.~tc; ~,_.;:•.~~~~;, ~~--~i~~l;;~ •. ~;~~-7,~-~-V '◄)f:F '· Microsoft Corporation
------===-""' --=1---:--,
Signature~~~ - mm Mic ft.
~ --~~r----------1----EII- - -----
Printed First c111d Last Name Microsoft Corpbratlon
I
Printed Title
Signature Date
(d;;,tc MIC'.Osofl l\ffili:ilc cour,1c1Gig·1s) • I ___ __ . ___ . • 1 Chance ~ra1 Agrecm _ent Effective Date I /'13 [ l / Duly ~uthorized n be~1alf of (r.i.,y he t~fff!reni than Mit:1<J~IJfl ~ Sl\jr'\alU!e <.Ja~c) 8 ( o<.. cl... 0 ~ Microsoft Cor oration -1--~----- - I
Optional 2nd Customer sign.1ture or Outsoun:cr signaturn (if applicable) ., ··~r--.. ~ :i~.-~~,·-~-
1i
' Name of Entity (must l>e legal entity name)'
Signature•
------------------------------
Print o cl First and Last Name>
Printed TIiie
Signature Date•
'imlic,1/li~ required fi·er
®ma:l!Jl;G? '' J;::, -- : ,_ - -
Name of Entity (nrni;t hP. legal entity name I'
Sign.1turc~ -----------'--------------------
Printed First and Last Narnc'
Printed Title
Signature Date'
• i11clicftles req11ire(/ field 1
If Customer requires physical medii:l, adclitioni:ll conlc1r.ls, or ir, rnporii11y multiple previou:; Enrollrne"ts, include the cippropriatc form(s) with this si~natu,e form.
After this signature form is signed by thr. C11~tomer, ~e11u il ancl llrn Contr'acl Docu1wm1s to Customer's channel partner or Microsoft account manager, who must submit !hem to the following adciress. Whe11 the signc1ture form is fully executed by Microsoft, Customer will receive a eonfinnation copy.
Microsoff Corporntion
Dert. 55·1, Volume Licen~in11
6100 Neil Road, Suite 2'IO
RP.no, Nevadu 89511- ·t ·t 37
USA
f>1og.-.i,nSig11rorr11(MSSi,Jn)iMA.I n•Anijf.~RRA.MI )(F.NG){A11920 l•I) 1-'cl(IC 2 ol ~! 23 0 : ~JI icrosoft Cl Voll I rne Licensing
Amendment to Contract Documents
'
/\IJ1CC•l1Clll /•I\Jlllbe, 1
8 0
f cJ.q.q.sJ 004-kaylee.cl-S-04
This ,1mf!ndmcnt ("Amcnd11rnnt") is entered i111o between tile parties iclentifiecl 011 t11e attacl1erJ program si~1nature form. It amends the Enrollment or Agreement identified above. /\11 lerrn!; used hut 1101 dflfined in this Amendrnent will have lhe same me,mings provicled in that Enrollmenl or A9ree1}1enl.
Enterprise Agreement
Custom Terms CTM
1. Scc:lion Oc1, "Tcr1n". is hereby rnn,:mclecl ancl restated as follows:
a. Term. The term ol lhis Agreement will rerm1in in effect unlr~ss termin,~ted by either party as desc1ibed lielo\•1. Er1d1 E,1rollinenl will hav~i the lcrm providrid in tlwl l:11rollmc11t.
2. The pricing that Microsoll will offer Enrolled /\ffilialfl' :; ResP.ller for 'Enrollments P.fff!r.1iwi betwe,:m Novernlier 1, 20'19 111rougl1 OclolJer J·t, 202·1. ,met that will c1pply for the entire initial terrn or such E111ollrne11l1;, i1; m; follnw1>:
- ~ ..... _ .. -·- - Exarnples Include but arc not limited to Product Price Level the following• :
Enterpri:rn Online Services .. Level [) M365 E~i c1nd ES, l.:nterprise Mobility + (inclmling Full USLs. 1:rom SA ininus 2% Security E3 and E5, 0 lfice 3G5 Enterprise USLs, Add-ons ancl Step Ups) E:1 or E3, Windows 'IO Enterprise E3 or ES _ .,.,. _ - - --·--- - - ·--- -Enterprise Products Level D Office 355 Pro Plus, Windows 10 C:nterprise, Core CAL Suite, Enterprise
CJ\L Suile
Aclclitionnl Products Level D l'v1365 Fl . M365 E5 Compliance, M365 ES Security, OHic:c 365 F.nlcrprisc F1, Project
Online, Visio Online Plan 1 0( Plan 2,
Oynamir;s :365, .A.zure, SOL Server,
Windows Server, etc.
Server and Tools Product Level D St1arePoint Server, SOL Server:-BizTalk (applies to Server and Cloud Server, Vi$11;;il Studio, Core lnfr;:istruclurc f:nrollments only) Suites, etc.
'It, ., l'Xrn11µle~ 111cludu 011111,u s"'""~i! s lt1cJt we uvii1l<1ble "' e,tr:~, lhe cc111•11crc1al 01 9ove,r11n~11t clou<f clle11ng,. • 'f.J11:a/i:•1inn F.n1;,1pds;, Onhn1>. $P.ivic?.s ,,r~ 1eif.1,tifie(I In 111P.. Pro c·t1r,; Tr,nns v,Hh lh<:< cP.11 ,~,u~ cl 'F.O' i11 t111;. !r,1>1% rm 'P1uy:urn A•,c.rlu~il1ll. ·111e ' .. H.:opu u! Enl<.:rµri:H:~ U ; 11i11e .Ser•Jic.:~s is :.:iubje:.;t lo c.:ll2.:·11u .us E:il t:~pr.'se 0'lli11e .S!!:-1v1c~ !::
:u e ,,r.f<le<I. u~dr,1ecJlrev·,ed or t em oveu from the C111er1)!is,; p1,;9ia,11 cllcri11! 1 f::<r.lusiam; flf)f1IY to thr~ .idc:litiam1I 2% <iisc::mmt on F.ntcrprisc Online Services flS follows:
C l "1·CPT-OPT -F1h'IC BD
Pann I c,r ?.
24 • The price list month th;;it applies to an orcler is not a factor in determining whether the additional 2% discouflt on Enlerp1 ise Online Services may be applied to an order. The only applicable factor ill tt1e effective dnte of the L:nrollment. • Tr1e discount <toes 1101 cipply lo ciny extensions of the initi8I Term or renewal Enrolhncnts.
• The cliscrnirit 1lof:s not npply to mIy promotional Sl<Us. EnrollP.cl /\ffiliale is enlitlP.d to the lower or the promotional price or discounted price.
Tha price tevet that applies to Eniottrnenls effective 011 or alter Novernller I, 2021 is Level D for all Pro(lur,ts.
The Reseller and th,~ Enrolled Affiliate will determine Ille Enrolled Afliliate's actual pric~ and Imy111ent. terms.
Except for clrnnges made by I his Arr 18ndme11t, the l:11roll111ent or .Agree111en1 identified auove remains unchanged m1cl in full force and effect. If there is ant conflict between any provision in this Amendment ancl c1ny provision in ttu~ E11rollmerit or /\ureernent icienlifi(~cl ililove, lhi~ /\11rnnd111P-ril :-;hall control. r-=•· rtiis· Amendmeirtmust he attached to a signature form to be valid.
Microsoft Internal Use Only:
rnvorsicle County ~A Amend IJ. 7 .clocx ClM CT M-CPT-OF-'T -FWI~ LID 1\mP.r.dmP.1: 1i\r:-n ,.,,1 O r.TM •GPT-OrT-F'NI( 13D
P,1,10 ? of ~~
25 a,
0 ~/licrosoft \/olurne Licensing
Enterprise Agreement State and Local
Nol for I.J5e with M1r,ro~vfl R115ir1riss A!J<P.e111;,nt "r Mi,.:1f15nil R11~ine.~~ m;d ~111•,ice.~ l'l!J111e.n1!-!11I This Microsoft Enterprise ArIree111ent ("Agreement'') is entered into between the entities identified on ihe signature form·. !
Effective date. The effective date or this Agreement is the earliest effective date of any Enrollment entered into under this Agreement or the dale Microsoft accepts this Agreement , whichever is earlier.
This Agreement consists of (1) these Agreement terms c1nd conditions, inch.1ding any arnendments .u1d the signature form and all attachments idenliliect
1 therein, (2) the Product Terms applicable to Products licensed under this Agreement, (3) the Online Services Terms, (4) any Affiliate Enrollment entered into 1mder this Agreement, ancl (5) cmy orcl0r submitted um/er this Agrc0menl.
I
Please note: Documents referenced in this Agreement but not attacl1ed to tl1e signature form may be found c1t http./lwww.rnicrosoft.com/hcc:11sin(J/contracts and are incorporated in this Agreement by reference, including the Proctuct Terms ancl Use Highls. These documents may contain aclditlonal terms and conditions ror Products licensed under this Agreement and may be changed from time to time. Customer should review slIch documents carefully, both at the time of signing and periodically there<1rter, and fully unclerstand all tel'rns and conditions applica9le to Products licensed .
Terms and Conditions
1. Definitions.
"Affiliate" means
a. with regard to Customer,
I
(I) any government agency, department, office, instrumentality, division, unit or other entity of the state or local government that is supervised by or is part or Customer. or wl1icl1 supervises Customer or of ~i11ich Customer is a part, or which is uncler common supervision with CtJstomer;
(ii) any county, borough, commonwealth, city, municipality, town, township, special purpose . district, or ot11er similar type of governmental instrumentc1lity established by the lc1ws of Customer's state and located within Customer's state jurisdiction and geographic boundaries: and
(iii) any other en1ity in Custome'.r's stale expressly authorized by the laws of Customer's state to purchase under state contracts: provided that a state and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the fedefal government ancl its Affiliates; and '
b. whh regafd to Microsori, any le
1 gal entity lhal Microsoft owns, that owns Microsoft , or that is under common ownership with Microsoft.
"Customer' means the legal entity lllat hss
1 nterecl into this Agreement with Microsoft.
"Customer Data" means all data, including all text, sound, sortware, image, or video files that are proviclecf to Microsoft by, or on behalf of. an Enrolled Affiliate and its Affilic1tes through use of Online Services. "day" means a calendar day, except for references llial specify "business clay". "Enrolled Affiliate" means an entity, eith~r Customer or ar,y one of Customer's Affiliates 01a1 has entered Into an Enrollment under this Agreement.
l:Mfl HlA\fl (ll8jSI.C(l::MC;j(l-lov20 I (:j) P~gu I of 11 Uoc111nc,,I X20-HJ2G'cl
26 "Enrollment" means Ille document lhal an Enrolled Affiliate submits under this Agreement to place orders ror Proclucts.
"Enterprise" means an Enrollee! Affiliate and the Affiliates for which ii is responsible and chooses on its Enrollment to inclucJe in its enterprise. •
I
"Fixes· means Product fixes, rnodificalions or enhrn1cemen1s. or their derivatives, that Microsoft either releases generally (such as Product service 1packs} or provides to Customer to mlclress a specific issue. "License" means the right to download . install. access <1nd use a Product. For cerlain Products, a License may be available on a fixed term or subscription basis ("Subscription License"). Licenses for Online Servic:es will be ctrnsi<fered Subscription Licenses.
•Microsoft" means the Microsoft Affiliale that has entered into this Agreement or an Enroll111enl and its Affiliates, as approfl(iale .
"Online Services" means the Microso/t -11ost~cl servic:es identified as Online Services in tt1e Product Terms. "Online Services Terms" means the additi6nal terms that apply to Customer's use of Online Se,vices published on the Volume Licensing Site ancl
1 uprlale<I from time lo time.
"Product" means all products identified in the Procluct Terrns, suet) as all Sorlware, Online Services ,mcl other web-based seNices, including pre-rel~ase or bela versions . . "Product Terrns" means the rlocument lhat pi·ovlcJes Information about Microsoft Products and Professiom1I Services available through volume licensing. The Product Terms document is rublishecl on lhe Volume Licensing SIie and Is updated_rrorn time to lime.
"SLA" means Service Level Agreement, whith specifies the minimum service level for Online Services and is published on the \/olum0 Licensing Sile.
"Software" means licer1sed copies of Microsoft software identified on the Product Terms. Sottwme doer, not include Online ServlGes, but Soflware may be 1n1rt of <111 Online Service , ··software Assurance" is an offerin~1 by Microsoft that provides new version rights and other benefits for Products as further described in the Product'Terms.
'Trade Secret" means information t11at is not generally known or readily ascertainable to the public, has economic value as a result, and has been subjecl to reasonable steps under the circurnstances to rnainlaln its secrecy. I
"use" or "run" means to copy, install. use, access, display, run or otherwise interacl. "Use Rights" means the use righls or terms ~f service for each Proclucl published on the Volume Licensing Sile and lrpdated from time to lime . The Use Rights supersede the terms of any end user license agreement that accompanies a Product. The Use Rights for Software are publist)ed by Microsoft in t11e Product Terms.
The Use Rights for Online Services are publ:ishecl in tile Online Services Terms. "Volume Licensing Site·· n1eans http:/lwww.rnlcrosoft.com/1i,::ensin.9l£..Q!1lJ.acl_§ or a successor site. '
2. How the Enterprise progr<(Jm works.
a. General. The Enterprise program consists of the lenns and conditions on which an Enrolled Affiliate may acquire Product Licenses. Under the Enterririse program. Cuslomer and ils Affiliates rnvy order Licenses fol· Products by entering into Enrollments. b. Enrollments. Th,:! Enterprise p_rograrn gives Customer and/or its Afliliates tile al>ility lo enter inlo one or more Enrollments to ,order Products. Subscription Enrollments may be available for some of these Enrollments . t~otwithstanding any other provision of this 1-\greement, only Enrolled Affiliates identified in an Enrollment will be responsible for complying with tile terms of that Enrollment, including th;e terrns of this Agreement incorpornted by reference in that Enrollment.
FI\WIOP.tJr(l .18)SI C(ENCl)(Nov2fi'lo) f'il(JA 2 ol 11 [)or,uin e11I X?.0·10?.09
27 c. Licenses. T11e types or Licenses available are ( 1) Licenses obtalnecl under sort 1,•1are Assurance (l&SA). and (2) Subscription Licenses. These License t11pes, as well as additional License Types, are further described in the Product List. 3, Licenses for Products.
I
a. License Grnnt. Microsoft grants the Enterprise a non .. exclusive, worldwide and limited rigl1t to (townload, install ,.md use soitware Products. and to access ancl use the Online Services, each in the quantity orderecl under an Enrollment. Tl1e rights granted are subject to the terms of this Agreement, the Use Rights ;)nd tl'le Product Terms. Microsoft reserves all rights not expressly granted in this Agreerj,enl.
b. Dllration of Licenses. Subscription Licenses and most Software /\ssur;;ince rights are tempornry and expire when the npplic<1ble Enrollment is terminated or expires; unless the Enrolled Affiliate exercises a buy-out option , which is available for some Subscription Licenses.
Except as oll1erwise noted in ihe applicable Enrollment or Use Rights, all other Licenses become perpetual only when all pclylllents for tlwt License have been macle ancl the initial Enrollment term has expired. •
c. Applicable Use l~tghts.
I
(i) Products (other than Onlitie Services) . The Use Rights in efiect on the effective date of the applicable Enrollment term will apply to Enterprise's use of the version of each Product that is current at the time. For- future versions and new Products. tl1e Use Rights in effect when those versions and Products are first released will apply. Changes Microsoft makes lo the Use Rights for a particular version will not apply unless the Enrolled Affiliate chooses to have those changes apply. Tl1e Use Rights applicnble to perpetual Licenses that were ticquired under a previous agreement or Enrollment are determined by the Agreement or Enrollment uncler which they were acquired . Renewal of Sollware Assurance does not change which Use Rights apply to those Licenses. •
(It) Online S~rvices . For Online ·services, the Use Hights in effect on the sl1bscription start elate will apply for the subscription term as defined in the Product Terms. cl. Downgrade rights . Enrolled Affiliate rnay use a11 et1rlier version of a Prodtict other than Online Services than the version that is current on the effective date of the Enrollment. For Licenses acquirecl in the current Enroltmeht term, tile Use Rights for the current version apply to the use of tile earlier version. IF the eailier Product version includes featu1es that are 1101 in the new version, lhen the Use Rights applicable to the earlier version apply with respect to those features.
e. New Verston Rights under Sortware Assurance. Enrolled Affilic1le ml1st order ancl maintc1in continuous Software Assurance'cov~rage for each License ordered. With Soflware AssL1rance coverage, Enterprise automatic~Jly has the rigi1t to use a new version of a licensed Procluct as soon as it is released, even if Enrolled Affiliate chooses not to use the new version immediately. (i) Except cis otherwise permittkct under an Enrollment, use of the new version will be subject to the new version's Use Rights.
(ii) 1r the License for the earlier version of tile Product i~ perpetual at the time the new ver~ion is released, the License for the new version will also be perpetual. Perpetual Licenses obtained through Software Assurance replace any perpetual Licenses for the earlier version.
f. License confirmation. This Abreement. the applicable Enrollment, Enrolled Affiliate's order confir,mition, ancl any documentation evidencing transfers of perpetual Licenses. together with proof of payment. wilt be Enrolled /\ffiliale's evidence of all Licenses obl::iined under an Enroll111011l.
Ei\21) I 61\gr(US}SLG(ENG\(Ncr~2016) P.:i\JC 3 or ·1 1
1Jo.:un1cnl X20 - 11J20[)
28 ~1 . Reorganlwtlons, consolklatlons and privatizations. II the number of Licenses covered l)y -an Enrollment changes by m?re than ten percent as a result of (1) a reorganiwtion , consolki;:ition or priva1izati(l1\ or an entity or an operating division, (2) a privatization of an Affiliate or an operating division of Enrolled Affiliate or any of its Affili.ites, or (3) a consolidation including a rner£1er with a third party that has an existing agreement or Enrollment, Microsoft will work with Enrolled Affiliate in good faill1 to <lete,mine how to ;:iccommodate its changecf circumstances In the context of ihis Agreement.
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4. Making copies of Products and re-imaging rights .
.i . General. Enrolled Affiliate may mal<e as many copies of Products, as ii needs to clistrit.Jute them within tile Enterprise. Copies rmwt be true and r.;oinplete (including copyright and ll'ademark notices) from master!copies obtainecl from a Microsoft approved fulfillment source.
Enrolled Affiliate may use a thircf party to make these copies, b\lt Enrolled Affiliate agrees ii will be responsible for any third party's actions. Enrolled Affiliate agrees lo rnalle reasonable efforts to notify its employees, agents, and any other individuals who use the Products that the Products are licensed from Micrbsolt and subject to the terms or thb Agreement. b. Copies for training/evatuation and back-up. For all Products other than Online Services.
Enrolled 1\lfiliate may: ('1) use (1µ to 20 complimentary copies or any licensed Product in a declicater.l training facility on its premises for purposes of training on lllat ra,ticular Product, (2) use up to 1 0 complimentary copies or any Products for a 60-day evaluation period, and (3) use one complimentary copy of any
0 licensed Product for bacl<-up or archival purposes for each of its distinct 9eographic locations. Trials for Online Services may be e:1vailahle if specified in the Use Rights.
c. Right to re-imc1ge, In certain cases. re-imaging is permilted using the Prod11ct media. If the Microsoft Product is licensed (1) from an original equipment mm1ufacturer (OEM}, (2) as a full packaged Product through a retail source. or (3) uncler another Microsoft program, then me:di;i provi<led under this Agreement 1may generally be used to create ima~ies for use in place of copies provided through that separate sot1rce. This right is r.onditiorial 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 Proclucl, language, version, and all components or the copies t11ey replace .=ind the numt1er of copies or instances of the re-imagecl ~roduct permitted remains the same. (iii) Except for copies of an ope~ating system and copies of Products licensed under another Microsoft program, tt1e Product type (8.fl -- Upgrade or full License) re-imaged must IJe identical to the Product type licensed from the separate source. (iv) Enrolled Affiliate must adhere to .iny Product-specific processes or requirements for re- imaging iclentifiecl In the Pro~luct Terms.
Re-image<! Pf'oducts remain sul\jecl to the terms anct use rights of the License acquired from the separate source. This r-ulJsection does not create or extend any Mic1osoft warranty or support obligation. '
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5. Transferring and reassigning Licenses.
a. Uccrnso transfers. License lrahsfers are not permitted, except t11at Customer or an r::nrollecl Affiliate may tr.insfer only fully-p
1 aid perpet\1al Ucenses to:
(i) an Affiliate, or
(ii) a third JJarty solely in cormedion wllh the transfer of hardware or employees to whom t11e Licenses have been rn;sian~d as part of (A) a privalizallon of an Affiliate or agency or of an 1:.1\20 I 61\[Jr(IJS)SLG(ENGJ( Nrw20 I IJ) Pngt! •1 of I ·1 uoc111nc111 x;w .·10:zol)
29 operating division or Enroiled Artiliate or an Affiliate. '(8) a reoiganization , or (C} n consolidation.
Upon such transfer, Customer ;o, Enrolled Affiliate must uninslall and discontinue using the licensed Product ancl reflder any copies unusable .
b. Notification of License Trn11sfcr. E11rolled /\rfiliate m11st notify Microsort of a License transfer by completing a license' transfer form, which can he obtained from l1tlo://www.microsolt.com/l:censj11q/r.or11rncts and sending the completed fcirm to Microsoft before tlie License transfer. No License transfer will be valid unless Enrolle(I Affiliale provides to the transferee, ancl Ille transferee accepts in writing, documents sufficient to enable lhe transferee to ascertain \he scorje, µurpose and limitations of \he rights granted b\' Microsofl uncler the licenses b'eing transferred (includingthe apµlicable Use Rights, use and transfer restrictions, warranties and limitations of liability). Any License transfer not made in compliance with this section will be void. j •
c. Internal Assiunment of Licenses ancl Software Assurnnce. Licenses and Software Assurance must l)e assigned to a single user or device within the Enterprise. Licenses and Software Assurance may be reassigned within the Ente1prise as described in the Use Rights.
6. Term and termination .
a. Term . The term of this Agreement will be 36 full calendar months from the effective dale u11less termi11c1lecl by either party 1:1s described below. Eact, Enrollment will l1ave tile term provided in that Enrollment.
b. Termlriat1011 without cause. Either party may terminate this Agreement, without cause, upon 60 days' written notir;e. In the event of termination, new Enrollments will not Ile accepted, but any existing Enrollment will continue for the term of such F.nrolhnent and will continue to be governed by this Agreemenl.
c. Mict-torm lennlnatlon for 11011-~pprorric1tion of Funcls. Enrolled Affiliate may terminate this Agreement or an Enrollment wiihout liability, penalty or lurtllf,:r obligation to mal<e payments if funds to make payments under the Agreement or Enrollment are nol appropriatecl or allocnted by the Enrolled Nfiliate for sur.ti' purpose.
cl. Tel'mination for cause. Without limiting any other remecties it may have, eilher party may tenninale an Enrollment ii tt1e 01t1er party 111ateric1 lly bri3aches its obligc1tions under this Agreement, inclucllng any oblig~tion to submit orders or pay· invoices. Except where the breach is by its nature not curnble within 30 days, the terminating party must give the other party 30 days' notice of its intent to termt;nate and an opportunity to cure the breacl1.
If Microsoft gives such notice to an Enrolled Affiliate, Microsoft also will give Customer a copy of that notice and Customer agrees to help resolve the breach. If lhe breach affects other Enrollments and cannot be resolved between Microsoft und Enrollee! Affiliate, toget11er with Customer's help, within a reasonable period of time, Microsoft may terminate this Agreement and all Enrollments under it. If an Enrolled ,1\ffiliate ceases to be Customer's Affiliate, ii must promptly notify Microsoft, and tylicrosoft may terminate the former Affiliate's Enrollment. If an Enrolled Affiliate terminates ils Enrollment as a result of a IJreach by Microsoft, or if Microsoft terminates an Enrollment because Enrolled Affiliate ceases to be Customer's Affiliate, then Enrolled Affiliate will have the e~rly termination rights described in the Enrollment. e. fairly termination . If ('I) an Enrolled Affiliate terminates its Enrollment as a result of a breach by Microsoft, or (2) if Microsoft terminates c1n Enrc,llme11t because the Enrolled Affiliate has ceased to be (H1 Affiliate of Customer, or (3) Enrolled Affiliate terminates an Enrollment for non appropriation of funds, or (•I) M/crosoll terminates an Enrollment for non-payment due to non appropriation of funds. then the Enrolled Affiliate will have the following options:
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(I) It mat immediately pay the ,otal remaining amount due. including all ini;lallments, in which case, the Enrolled Affiliate will have perpetual rights for -'111 Licenses ii has ordered; or I
Paw~!ir,r11
l1nrn1111<nl x2r,.1mmJ
30 (Ii) II may pay only amounts due as or the termination elate. in which case the Enrollee! Affiliate will have perpeltml Licenses: for:
'I) all copies of Products (inclur.ling tile latest version of Products orclered under SA coverage in tt1e cwrent \erm) ror wl1icl1 payment lrns been made in full, ancl 2) the number of copies of Products ii l1c1s ordered (including tile latest version or Products ordered under Software Assurance coverage in current term) that is rroportion<1I to the total of installment payments paid versus total amounts (tue (p<.1id and payable) if the early termination ilacl not occurred. (iii) In lhe case or early termination under subscription Enrollments, Enrolled Affiliate will l1ave the following option~:
·1) For ellgil)le Products. E11rolled Affiliate may obtain perpetuc1I Licenses as described in the section of the Enrollment titled "Buy-out option," provided that Microsoft receives the buy-out order for those Licenses within 60 days after Enrolle<I AffiliatA provide:; notice of termination.
2) In the event of a bread, by Microsoft, If CL1sto1ner chooses not to exercise a buy-out option, Microsoft will iss'ue Enrolled Affilaite c1 credit for any amount paid in advance for Subscription Licens'es that the Enterprise will not be able to use to do the termination of the Enrollment.
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f\lothing in this section sl1all affect pe1petual License rights acquired eith~r in a Sf)parate agreement or In a prior term or the lerrnlnalecJ Enrollment. f. Effect of termination or expira\1011. Wilen an Enrollment expires or is terminatecl, (i) Enrolled Affiliate must orcler1Licenses for all copies of Proclucts ii has run for which ii has not previously submitted an order. Any and all unpaicl payments for any order of any kind remain clue and payable, Except as provided in the Sltb:.ection titled "Early termination," all unpaid payments for Licenses immediately become due and payable. (ii) Enrolled Affiliate's rigl1t to Software Assurance benefits under this Agreement ends if it doe~ not renew Software As'swance.
g, Modification or termination of an Online Service for rnguh,tory roc1sons. Microsoft niay modify or terminate an Online, Service where there is any current or iuture government requirement or obligation tilat: !(I) subjects Microsoft to any regulation or requirement not generally applicable to businesses operating in the jurisdiction; (2) presents c1 hardsltip for Microsoft to co'ntinue operating t11e Online Service without modification; and/or (3) causes Microsoft to believe tt1ese terms or the Online Service may conflict witt1 any sucll requirement or obligation. I
h. Program upclates. Microsoft n~ay mal<e changes lo this program Iha\ will make it necessary for Customer ,ind its Enrollee! Affiliates to enter into new agreements and Enrollments at tile time of an Enrollment renewal. I
7. Use, ownership, rights, a1~d restrictio11s.
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a. Proclucts , Unless otl1ervJise specified in a supplemental agreement, use of any Product is governed by the Use Rights specific to each Procluc\ and version and by the terms of \he applicable supplemental agreenienl.
b. Fixes. Each Fix is licensecJ under the same terms as the Procluct to which ii applies. If a Fix is not provided for a specific Prodt1ct, any use rights Microsoft provides wit11 the Fix will apply. c. Non-l\/licrosoft software anct te,chnofogy, Enrolled Affiliate is solel~• responsible for ~l1)y non Microson soflware or teclmology tliat it installs or uses with the Products or Fixes.
EAi!lll6AW(US)SLG(GIG)(Nov2016) f'<•tlC:: G tir i 1
Oo,;11111c111x20.·1021, g
31 d. Restrictions. Enrolled /\ffiliate must not (and is not licensed to) ('I) reverse engineer, decompile, or disc1ssemble any' Procluc1 or Fix; (2) install or use non-Microsoft sortware or technology in any way that would subject Microsoft's intellectual property or technology to .iny other license t.errns; or (3) wo'rk arouncl wry technical lirnilations in a Product or Fix or restrictions in Product documentation. Customer mt1st not (and is not licensed lo) () sepawte and run pails of a Product or Fix on rnore than one clevice, upgrade or downgrade parts of a Product or Fix at clilferenl limes, or transfer pmts of u Product or Fix separately: or (ii) distribute, sublicense, rent, lease, lencl c1ny Products or Fixes, in wl1ole or iii pc1rt, or use them to offer hosting services to a tl1ircl parly.j
e, l~eservc1tion of rights. Produds and Fixes .ire protected by copyright ancl other intellectual propetiy rights laws and interliational treaties. Microsoft reserves all rights not expressly grnnted in this agreement. No rights will be granted or implie<I by waiver or estoppel. Rights lo access or use Software on a ~levice do not give Customer any right to ilnplement Microsoft potents nr olhe1 Microsoft inlellectual property in tile device ilself or in any other software or devices.
8. Confidentiality.
"Conficlential Information" is non-public information that is designated "confidential" or that a reasonable person shOuld un<lerstri'nd is confidentic1I, including Customer Data. Confidential Information does not include information that (a) becomes publicly available wilhout a breach of this vgreernent, (b) the receiving party received lawfully from anoll,er source without a conficlentialily obligation . (c) is independently developed, or (d) is a cornmenl or suggestion volunteered about the other party's business. products or services. I
Each party will take reasonable steps to prot,ect ll1e other's Confidential I nfonnalion and will use the other pvrty's Confidential Information only for purposes of the parties· business relationship. Neither party will disclose that Confidential lnfonm\tion to thir~ parties, except to its employees, Affiliates. conlractors. advisors and consultants (' Representatives") and then only on a need-to-know basis under nondisclosure obligations al least as protective as this agreement. Each party remains responsible for the use of t11e Conficlential lnforrnation by its Representatives and, in the event of discovery of any 1,nautl)orized use or disclosure, must prornplly notify the olher party.
A party may disclose the other's Confidentiai l11forrn<1tion if required by law; but only afler it notifies the other party (if legally permissibki) to enable the other pcirty to seP-1\ a protective order.
Neither party is requirecl to restrict worl< assignments of its Represen1atives who have had <1ccess lo Confidential lnfor,w~tion Eacl\ party agrees that the use of Information retained in Representatives' unaided memories in the development or deployment of lhe parties' respective products or services does not create liabilily under this Agreement or trade secret law, and each party agrees to limit what it discloses lo the other accordingly. I
Tl1ese obligalions apply (i) for Customer Data until it is deleted from Ille Online Services, and {Ii) for all other Confidential Information. for a periocl o_f hve years after a pmty receives the Confidential lnformc1tion.
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9. Privacy and compliance ii{ith laws.
a. Enrolled Affiliate consents to tile processing of personal information by Microsoft ancl ils agents to facllitale the subject matter 'of this Agreement. Enrolled Affiliate will obtain all require<! r.onsenls from third pc1rties uncler applicable privacy and data protection law before providing personal inform~tlon to Microsofl.
b. Personal informc1tion collected under this <lgree1ne11t (i) rnay Ile lransferred, stored and processed in the United Slates or any other country in whict, Microsoft or its service providers mc1int;:iin facilities and (ii) will be subjecl lo the privacy terms specified in t11e Use Rights.
Microsoft will abide by the requir~menls of European Econornk: Area anci Swiss data protection I
F'~Ge 7 or 1 ·1
Docu111cn1 X20-10209
32 law regarcling t11e collection, use, transfer, retention, and ott1er processing of personal <lata frorn the European Ec:0110,nic; Ah:r.1 and Switzerlrtn<I, c. U.S. export. Products and Fixe1s are subject to U.S. export jurisdiction. Enrolled Affiliate must comply with all applicable international ancl national laws, includinr1 the LI. S. Export A<J111inistratio11 Reglll(1tions und
1 International TraffiG in /\1ms Regulations , and end-user, end use ancl destination restriction~ issuecl by U.S. and other governments related lo Microsoft proclucts, services and technologies.
10. Warranties.
a. Limited warrnntie5 and remedies.
(i) Soflware . Microsoft warrants that each version of the Software will petiorm substantially as described in the applicable Procluct clocumentalion for one year from the dale the Enterprise is first licensee! 1 for that version. If it does not and ll1e Enterprise notifies Microsoft within the warranty term, then Microsort will, al its option ('1) return t11e price l:nrolled /\ffiliale paid for the Software license, or (2) repair or replace the Software. /ii) Online Services. Microsoti warrants tllat each Online Service will perform in accorclance wilt) t11e applicable SLA cturing lhe Enlerp,ise 's use. The Enterprise's remedies for breach of this wmranty me in lh0 S~A.
The remedies above are tile Enterprise's sole remedies for breach or 111e warranties in tt1is section. Customer waives any breach of warranty claims nol made during the warranty period. b. Exclusions. The Wclrranlies in ·this agreement do not o1pply lo problems caused by accident, al>Use, or use in a manner inconsistenl wit11 this Agreement, inclucllng failure to meet minimum system requirement:;. Tllese 'warranties clo not c1pply to free, trial, pre-release, or l.leUi products, or lo components of Products that Enrollecl Affiliate is permitted to redistribute. c. Disclaimer. Except for ll1e 'limitecl warranties above, Microsoft provides no other wc1rrantles or conclltlons add disclaims any other express, irnpliecl, or statutory wmrnnties, including warrant(es of quality, title, non-Infringement, merclrnnt.ibillty, ancl fitness for a particular purpose.
11. Defense of third party claims.
The parties will defend each ot11er against the third-party claims described in this section and will pay the c1111ount of any resulting adverse final judgment or approved setllement, but only if the defending pa1ty is promplly notified in writing of the claim and h'as the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance. information, and authority. The defending party will reimburse the other p~rty for re.isonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties' sole remedies and entire liability for such claims.
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a. By Microsoft. Microsoft wilt defend Enrolled P,ffiliate against any third-party claim to the extent ii c1lleges tltal a Product or Fix made available by Microsoft for a fee and used within the scope of the license granted (unmodifi~d from the form provided by Microsoft and not combined with ;:inything else) misappropriates a trade secret or directly infringes a patent, copyright, trar.le:,mark or othm proprietary right of a third party. If Microsoft is unable lo resolve a claim of infringement under commercially reasonable terms, it may, at ils option, either (.I) modify m replace the Product or Fix with a functional equivalent; or (2) terminate Enrolled Aftiliate's license and refund any prepaid lict:mse fees (less deprecic1tion on c1 five-year, straight-line basis) for perpetual licenses alicl any amount paid for Online Services for any usage period after lhe termination dale. Microsoft 1.vill not be liable for any claims or damages due lo Enrolled Afhliate's continued use of ct Pro'duct or Fix after being notified lo stop clue to ct third-pmty clc1im.
I>. By Enrollecl Affiliate. To the extent permiltecl by applicable law, Enrollecl Affiliate will defend Microsoll against any third-party claim lo the extent it alleges thal: ('1) any Customer Data or I
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Documcnl l<.20- 10200
33 non-Microsoft software hosted l(1 an Online Service by Microsoft on Enrolled Afrlliale's behalf misappropriates a trade secret or directly infringes a patent, copyright, tradernarl<, or other prop.rietary right of a third pa,ty; or (2) Enrolled Affili<1te's use of any Product or Fix, alone or in combin.:itio11 with anything else, ~iolates the law or damages a third par1y.
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12. Limitation of liability. I
r:or each Product, each party's maximum, agwegate liability to the other u11der this Agreement is .limited to clirer.t damages finally awarcled in an arnot1nt not to exceect the amounts Enrolled Affiliate was required to pay for the c1pplicabl0 Products during the1tern, of 11,is Agreement, subject to the following:
"· Online Services . Por Online Services, Microsoft's maximum liability to Enrolled 1\ttiliale for any incident giving rise to a claitr will not exr.eed t11e amount Enrolled Affiliate paid for the Online Service during the ·1 2 months before the incident. b. Free Products and Dlstrlllutal~le Code. For Products provlcled free of charge and code that Enrolled Affiliate is authorizlilcJ to redistribute to third parties without separate payment to Microsoft, Microsoft's liability is limited to direct damages fincilly .1w<1rded ur to USS5,000. c. Exclusions . In no event will either party be liable for indirect, incidental, special. pllnitive, or consequential dc1mages, or for loss of use, loss of business information, loss of revenue, or interruption of business, however caused or on any theory of liability.
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cl. Excaptions. No lirnil;)tion or exclusions will apply to liability arising out of either party's (1) confidentiality obligations (except for nil liability related to Customer Data, wl1icl1 will remain subject to the limitations ,md exclusions above); (2) defense obligntions; or (3) viol::ition of the other party's intellectual property rights.
13. Verifying compliance .
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cl. r~ight to vorify compliance . Enrolled Affiliate must l<eep recorcls relating to all use and distribution of Products b~1 Enrolled Affiliate m1cl its Affiliates. Microsoft has the right, at Its expense. to t11e extent permitted by applicable law, to verify compliance with the Product's license terms. Enrolled /\ffiliat'e must promptly provicle the inclepenctent auditor with any information !lie auditor reasonably requests in furtherance of the verification, including access to systems running the Products,and evidence of Licenses for Products Enrolled Affiliate hosts, suhlicenses, or distributes to third par1ies. Enrolled Affiliate agrees to complete Microsoft's self-audit process, which Microsoft may require as an allemalive lo a third pany audit.
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b. Remedies ror non-compliance . If verification or self-audit reveals any unlicensed use or distribution. then within 30 days', ('1) Enrolled Artiliale must order sufficient Licenses to cover that use or distribution, and (2) if unlicensed use or distribution is 5% or more .. Enrolled Affiliate mus! reimburse Microsoft for tlie cost Microsoft has incurrecl in verlficalion anc1 acquire the necessary additional licenses a't ·125% of the price basecl on the then-current price list and Enrolled Affiliate price level. The unlicensed use percentage is based on the total number of licenses purchased compared to actual install base. If there is no unlicensed use, Microsoft will not subject Enrolled /\ffiliate to i.::inother verification for at least one year. By exercising the rights and procedures ciescrihe.d c1bove, Microsoft does not waive its rights to enforce this /\greernenl or to prolect its intellectual property by any other means permitted by law.
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c, Verification process. Microsoft will notify Enrolled Affiliate 31 least 30 days in c1dvance of its intent to verify Enrolled Affiliate's complic1nce with the license terms for the Products Enrolled Affiliate and its Affiliates use or distribute. Microsoft will engage c1n independent midiior, which will be subject to a confidentiality obligation. Any information collected in the self-audit will be used solely for purposes of del~rmining compliance. This verification will lake place during norrnal business hours and in a manner that cloes not Interfere unreasonably with Enrolled Affiliate's oper.:ilioris. '
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34 14. Miscellaneous.
a. Use or contractors . Micro~c>ft rn.iy use r,ontrcictors to perform services, but will be responsible for their performance subject to the terms ol this Agreement. b. Microsoft as independent cohtn1ctor. The parties arc ind0penclent contractors . l:nrollecl /\ffiliate and Microsort each may clevelop products independently wilhoul using the other's Confidenlial lnfor111alion. ,.
c. Notices . Notices to Microsoft rnLst be sent to the address on the signature torn 1. Notices must be in writing and will be treated as delivered on the elate shown on the return receipt or on the courier or fax confirmation of delivery. Mierosoft may provide information lo Enrolled Affiliate about upcoming orclering deadlines. services, and subscription informalion in electro111c forrn, including by email to contacts provided by Enrolled Affiliale. Emails will.be treated as clelivernd on the transmission date.
cl. Agreement not exclusive. Customer is free to enter into aweements to license. use or promote non-Microsoft products,
e. Amendments . Any mnenclmenl lo this Agreement must be executecl by boll1 parties, except that Microsoft may chanue the Product Terms ancl the Use Rights from time lo time in accordance will1 ll1e terms of this Agreement. Any conflicting terms and conditions contained ir\ a11 Enrolled Affilic1le's 1)llrchc1s~ order will not apply. Microsoft may require Customer to sign a new agreement or an alnenclment before an Enrolled Affiliate enters into an Enrollment under this agreement.
f. Assignment. Either party mny assign this Agreement lo an Affiliate, but must notify the other party in writing·of the assignmept. Any other proposed assignment must be approved lly the non-assi9ning party in writing. Assigninenl will not relieve tlie assigning party of its obligations under lhe <1ssignecl agreement Any attempted assignment without required approval will l>e void.
g. Applicable law; dispute reso1l1tio11. The terms of this Agreement will be gov.erned by the laws or Gus11.)rner's stl'Jte, without giving effect to its conflict of laws. Disputes relating to this Agreement will be subject lo ap1'llicable dispute resolution laws of Customer's slate.
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h. Severnbllity. If any prol/ision irVtllis agree111ent is hetcl lo be unenforceable, the halance of the ogreemenl will remctin in full forde and effect.
i.
j.
' Waiver. Failwe to enforce any: provision of l11is agreement will not conslitute a waiver. Any waiver must be in writing and signed by tile waiving party.
No lhlrcl-p,uly heneflcfr1rles. •This /\greement does not Cff:)ate c1ny third-party bcrneficiary rights. 1
k. Survival. All provisions survive termination or expiralion of H1is Agrnement except those requiring performance only during t11e te,m of the /\greement.
I. Management c1ml Reporting. Customer and/or Enrolled Affiliate may manage account cletails (e.g., contacts, orders, Licens~s. software downloads) CJJ\ Microsoft's \/olurne Lice,,sirrg Service Center ("VLSC') web site (or successor site} at:
!illJ1s.flvvww m:crosoft com/licen~ir1g/sorv1,;ecenter. Upon the effective elate of this Agreement and any Enrollments, the contact(s) identified for this plirpose will be provided access to this site an<l may authorize ndditione11 users and r,ontacts. rn. Order of precedence . In the case of a conflict between any docurnents in tl1is Agreement llrnt Is not expressly resolved in those documents, their terms will control in Ille following order· f1•om highest to lowest priority: (1) this Enterprise Aqreement. (2) any Enrollment, (3} the Proctuct Terms, (4) the Online Services Terms, (5) orclers submitted uncler tt1is Agreement, and (6) any other documents in ll1is Agreehient. Tt'!rrn~ in an amendment control over the c1mendecl docurnenl and any prior amenclrnents concerning the same subject mc1lter. f"',JcJ~ 10 or 11
Oor.umenl X20-1020~
35 I
n. Frne Products. It is Microsofl'~ intent tlrnl lhe ternis of this Agrnement and th~ Use Rights be in compliance with all applicable federal law ancf regLIlations. Any free Product provided to .
Enrolled Afliliale is for lhe sole ~tse and benefit of lhe Enrolled Affiliate, and is not provided for use by or personal benefit of an
1 y specific government employee.
I
o. Voluntary Product Accessibili _ty Templates . Microsoft supports !he government's obligation to provide accessible technologies lo its citizens with disabilities as required by Seel ion 508 of !he Rehabilitation Act of 1973, and its state law counterparts The Voluntary Product /v.;cessibility Teinplates ("VPATs") ror tile Microsoft technologies used In providing t11e Online Services can be found at Microsoft's VP/\ T page. FuI1her informc1tion regMding Microi-ofl's commilment lo accessibility can be found at !~t[p.//i~•.vv,.rnicrosofl.corn/enable. p. Naturnl disaster . In !tie event of .:1 "natural dis.1ster," Microsoft rnay provide c1dditionat assistance or rights by posting t'.hem on )J!l.P:l/1,1~.yy1.111icr_osofl.c·cm1 at such time. q. Copyright vlolatio11. Except 3S set fo11h in the section above entitled "Transferrinft and reassigning Licenses", !he Enrolled Affiliate agrees to pay for, and comply with o,e terrns of this Agreement anct the Use Rigl1ts,
1 for the Products it llses. Except lo the extent Enrolled Affiliate is licensed under lhis Agreement. ii will be responsible for ils lirnact, of this contract £1t1d violation of Microsoft's copyright in the Produc.ts, including payment of License fees specified in lllis Agreement for unlicensed use.
I
E/120 Hl1\ t1r(I.JS)SLG(EMGJ1.Nov?.0·t G) i'il!JC 11 of 11 Doi:rn11<111I Y.~n-·I0~I>9
36 8 ' Microsoft
Supplemental Contact Information Fonn
I
Volume l.icensin9
This form can be used in combinatioh with MBSA, Agreement, and Enrollment/Registration.
However. 8 separnt0 form must be submitted for each enrollment/registration, when more than orre is submitted on a signature form. For tl1e purposes of t11is form, ·entity" can mean the signing entity, Cust(lrner, Enrolle<J Affiliate, Government P<1rlner, lnslilulion, or other party entering into a voluIne licensin9 program agreement. Primary a1ic1 Notices contacts in this form will not apply to enrollments or registralions.
Tt)is form applies to: [] MBSA
~ Agreernenl
[] Enrollment/Alhliate Registration Form
Insert primary entity name if more than one Enrollment/Registration Form is submitted
Contact information.
Each party will notify the other in writing if MY of the information in the following cont8cl informc1tion page(s) changes. Tile asterisks (') indicate requirecl fields; if the entity cl1ooses to designate other contact types, tile sar)1e required fields must ue corhplele<I for each section. By provi<llng contacl information, entily consents to its use for purposes of administering tho Enrollment by Microsoft and other parties lhat llelp 'Microsoft aclminlster lhis Enrollment. Tile personal information provided in connection with this 2greement will be 11sed a11d protectecl accor(ling to Ille privacy statement available at 111lDs:/illcem,inq rm:rosolt.com .
1. Additional notices contact.
This contact receives all notices that me sent from Microsoft. No online access is granted to ·this indiviclual,
Name of entity• County of Riverside
Contact name•: First I1egina Last r=unclerburk
Contact email address• RFunderburl<@riv~o.org
S~rect ~ddr?ss• 3450 ·14th _Street, 4t~, Fl~orI ,
City• R1versrde State/Provmce• Calrforrna ·Postal cocte• 92501-386·1 Country'- USA
Phone• 951-955-2265 Fax 1
D This contact is a lllird parly (not t11e en'tity'). Warning: This contact receives personally identifiable information of the entity. r
2. I
Software Assurance manager_
This contact will receive online permissiohs lo mam1ge l11e Software Assurance benefits under t11e Enrollment or Registration. '
Name of entity' County of Riversicle
Contact name': First Regina Last Funderhurl\
Contact email c1cldress• RFunclerburl<@riv~o.org
Street address• 3450 ·14111 Street, 4th Floor,
City' Riverside State/Province• California I Postal code• 92501-386 '1 S11rC f)r\l,1cllnloF orm(N/1,INO)(i=NG)(Or,t?l) r :i)
37 Country• USA
Phone• 95·1-955-2265 Fax
0 This contact is a third party (not tile entity). Warning: This contact receives personally identifiable inrorrnation or the entity.
3. Subscriptions manager.
This contact will assign MSDl'I, l::xpression, and TechNet Plus subscription licenses to \11e indiviclual subscribers under this Enrollment or Regislration . Assignment of lhe subscription licenses is necessary for access to any of the online benefits, such c1s subscription downloc1ds. This contact will also manc1ge any complimentary or additional media purchases related to these subscriptions.
Name of entity• County of Riverside
Contact name•: First Regin" Last Funderburk
Contact enu1il address• RFunderburl<@rivco.org
Street address* 3450 14th Street, 4th Floor
City' Riverside State/Province' Californic1 Post.ii code' 9250·1-3861 Country• USA
Pl1011e• 95·1-955-2265 Fax
0 This contact is a third party (not the entity). IJ\lmning: This contact receives personally identifiable information ot the entity.
4. Online services manager.
·This contact will be provided online permissions to manage the online se,vic;e:; ordered 1J11der tl,e Enrollment or l~egistralion.
Name of entity• County of Riverside
Contnct 1mrne•: First Luis Last Flores
Contact email address* [email protected]
Street address• 3450 14th Street, 41h Floor
City' Riverside State/Province' California Postal code• 9250·1-3861 Country• USA
Phone• 95·1.955.a-114 Fax
D This contact is a third party (not the entity). Warning: This contact receives personally identifiable information of the entity.
5. Customer Support Manager (CSM).
This person is designated as the Customer Support Manager (CSM) for suppor1-relatecl activities.
Name of e11tlty* Counly of Riversi<le
Contact name' : First Luis Last Flores
Contact email aclcl ress• [email protected]
Stroot address• 3450 14th Street, 4th Floor
City' Riverside State/Province' Cnlifornia Postal code' 9250·1-3861 Country• USA
Phone• 951-955-8114 Fax
6. Primary contact information.
An Individual from inside the organization must serve as the primary cont@ct. This contact receives online administrator permissions and may grant online access to olhers . This contact also receives all notices unless Microsoft is provided written notice of a change.
Name of entity• County of Riverside
S11pContac11nrof'u1,n(N/l,ll~O)(l::NG)(Oc1201:1)
38 Contact name: First Jim Last Smith
Cont«ct emilll address• jimsmilh@rivr,o.org
Street address' 3450 14th Street, 11th Floor
City' Riverside State/Province• CA Postal code" 9250 '1 ·386 ·1 Country• US
Phone• 951 ·231-5909 Fax
7. Notices contact and on/ine administrator information.
This indivkJunl receives online n<lininistmtor permissions ;,md may grw1t online access to others. This conlc1cl also receives all notices .
cg) Same as f"imflly r.onfAcl
Narne of entity'
Contact name•: First Last
Contact email address•
Street address'
City• State/Province" Postal cocle'
Country•
Phone~ Fax
[] This contact is a tl1ird pany (not tt1e entity). Warning : This contact receives personally identifiable information of the entity.
F'nge 3 c.f 3
39 M icrosoft Volume Licensing
Program Signature Form
MBNMBSA number Proposal ID
Agreement number
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 I Number or Code
Select Plus Agreement X20-04874
<Choose Agreement> Document Number or Code
<Choose Agreement> Document Number or Code
<Choose Agreement> Document Number or Code
<Choose Agreement> Document Number or Code
Select Plus Affiliate Registration Form X20-04921
<Choose EnrollmenURegistration> Document Number or Code <Choose EnrollmenURegistration> Document Number or Code <Choose EnrollmenURegistration> ·- Document Number or Code <Choose EnrollmenURegistration> Document Number or Code Document Description Document Number or Code
Document Description Document Number or Code
Document Description Document Number or Code
Document Description Document Number or Code
Document Description Document Number or Code
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 Ent~.y al entity name)* County of Riverside
Signature* ~\,::L'.:'.:._~--J.-i~ :;::::~,.___,----------------;-/+---fi~ -1=-t Printed First an * Ines Mark FOR TY COJ~\I) \\·l
Printed Title* Procurement Contract Specialist IJ/.Y.. - DATE Signature Date* 07/17/2013
Tax ID 95-6000930
* indicates required field
ProgramSignForm(MSSign)(NA ,La!Am)ExBRA,MLl(ENG)(Oct2012) Page 1 of 3 40 • Microsoft Affiliate
Microsoft Licensing, GP
Signature --------------------------------
Printed First and Last Name
Printed Title
Signature Date
(date Microsoft Affiliate countersigns)
Effective Date
(may be different than Microsoft's signature date)
Optional 2nd Customer signature or Outsourcer signature (if applicable) Customer
Name of Entity (must be legal entity name)"
Signature*
-------------------------------
Printed First and Last Name*
Printed Title*
Signature Date*
* indicates required field
, Outsourcer
Name of Entity (must be legal entity name)*
Signature*
- ------- ------------------------
Printed First and Last Name*
Printed Title*
Signature Date*
* indicates required field
If Customer requires physical media, additional contacts, or is reporting multiple previous Enrollments, include the appropriate form(s) with this signature form.
After this signature form is signed by the Customer, send it and the Contract Documents to Customer's channel partner or Microsoft account manager, who must submit them to the following address. When the signature form is fully executed by Microsoft, Customer will receive a confirmation copy.
Microsoft Licensing, GP
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 89511-1137
USA
ProgramSignForm(MSSign)(NA,LatAm)ExBRA,MLl(ENG)(Oct2012) Page 2 of 3 41 Prepared By: Name of Preparer
Email of Preparer
ProgramSignF orm(M S Sign )(NA, LatAm)ExBRA, ML I (E NG)(Oct2012) Page 3 of 3 42 Microsoft Volume Licensing
Select Plus License Program Agreement State and Local
Contents
1. Definitions .......................................................................................................................................... 1
2. How the Select Plus License program works ................................................................................. 3
3. How to establish price level . ............................................................................................................ 3
4. License grant- what Registered Affiliates are licensed to run . ................................................. 3
5. How to know what Product Use Rights apply ................................................................................ 4
6. How to order Product Licenses . ...................................................................................................... 5
7. Making copies of Products and re-imaging rights . ....................................................................... 6
8. Transferring and reassigning Licenses . ......................................................................................... 6
9. Term and termination ........................................................................................................................ 7
10. How to renew an Order ..................................................................................................................... 8
11. Restrictions on use . .......................................................................................................................... 9
12. Confidentiality . .................................................................................................................................. 9
13. Warranties ........................................................................................................................................ 10
14. Defense of infringement, misappropriation, and third party claims .......................................... 11
15. Limitation of liability . ........................................................ .............................................................. 12
16. Verifying compliance . ..................................................................................................................... 13
17. Non-Microsoft Software or Technology ........................................................................................ 14
18. Miscellaneous .................................................................................................................................. 14 This Microsoft Select Plus Agreement is entered into between the entities identified on the signature form.
Effective date. The effective date of this agreement is the effective date of the first Affiliate Registration Form or the date Microsoft accepts this agreement, whichever is earlier.
This agreement consists of (1) the terms and conditions of this agreement and all attachments identified therein, (2) the Product List, (3) the Product Use Rights applicable to Products licensed under this agreement, (4) any Affiliate registration entered into under this agreement, and (5) any Order submitted under this agreement.
The parties agree to be bound by the terms of this agreement.
Terms and Conditions
1. Definitions.
In this agreement the following definitions apply:
"Affiliate" means
a. with regard to Customer
(i) any government agency, department, office, instrumentality, division, unit or other entity of the state or local government that is supervised by or is part of Customer, or which supervises Customer or of which Customer is a part, or which is under common supervision with Customer;
(ii) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer's state and located within Customer's state jurisdiction and geographic boundaries; and
SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 1 of 16 Document X20-04874
43 (iii) any other entity in Customer's state expressly authorized by the laws of Customer's state to purchase under state contracts; provided that a state and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government and its Affiliates; and
b. with regard to Microsoft, any legal entity that Microsoft owns, that owns Microsoft, or that is under common ownership with Microsoft
"available" means, with respect to a Product, that Microsoft has made Licenses for that Product available for ordering under a particular licensing program;
"Commercial Product" means any Product Microsoft makes available for license for a fee; "Contractor" means any third party supplier or other provider of computer technology or related services. "Customer" means the entity that has entered into this agreement and its Affiliates; "Customer Data" means all data, including all text, sound, software.or image files that are provided to Microsoft by, or on behalf of, Customer through Customer's use of the Online Services. "Fixes" means Product fixes, modifications or enhancements or their derivatives that Microsoft releases generally (such as Commercial Product service packs);
"License" means Registered Affiliate's right to use the quantity of a Product ordered. For certain Products, a License may be available on a subscription basis ("Subscription License"). Licenses for Online Services will be considered Subscription Licenses under this agreement; "L&SA" means a License and Software Assurance for any Product ordered; "Microsoft" means the Microsoft entity that has entered into this agreement by accepting Customer's registration;
"Order" means the document Customer or Customer's Affiliate submits under this agreement to acquire Licenses or Services;
"Online Services" means the Microsoft-hosted services identified in the Online Services section of the Product List.
"Product" means all software, Online Services and other web-based services, including pre-release or beta versions, identified on the Product List.
"Product List" means, with respect to any licensing program, the statement published by Microsoft from time to time on the World Wide Web at http://www.microsoft.com/licensinq/contracts, or at a s uccessor site that Microsoft identifies, which identifies the Products that are or may be made available under the program (which availability may vary by region) and any Product-specific conditions or limitations on the acquisition of licenses for those Products;
"Product Use Rights" means, with respect to any licensing program, the use rights for each Product and version published for that licensing program at http://www.microsoft.com/licensing/conlracts or at a successor site.
"Qualifying Contract," means (1) an Enterprise Enrollment under a Microsoft Enterprise Agreement; (2) any Enterprise Subscription Enrollment entered into under a Microsoft Enterprise Subscription Agreement, or a Select Agreement.
"Registered Affiliate" means an entity, either Customer or any one of Customer's Affiliates, identified on an affiliate registration form that has been accepted by Microsoft and has submitted an Order under this agreement;
"Reseller" means a large account reseller authorized by Microsoft to resell Licenses in a Registered Affiliate's region under this program;
"Service Level Agreement" means the document specifying the standards Microsoft agrees to adhere to and by which it measures the level of service for an Online Service.
SelectPlus2012AgrGov(US)SLG(ENG )(Oct201 2) Page 2 of 16 Document X20-04874
44 "Software Assurance" means an annuity offering 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.
2. How the Select Plus License program works.
The Select Plus License program allows Registered Affiliates to acquire Licenses at discount pricing.
Customer and Customer's Affiliates can participate in this program if Customer or Customer's Affiliate (1) submits an Order meeting the initial minimum order quantity, (2) maintains at least one active Qualifying Contract, or (3) has purchased the minimum order quantity during the 12 months preceding the effective date of this agreement. Notwithstanding any other provision of this agreement, only Registered Affiliates identified in a Registration Form will be responsible for complying with the terms of that registration, including the terms of this agreement incorporated by reference in that registration. a. How Registered Affiliates acquire Licenses. A Registered Affiliate will acquire its Licenses through its chosen Reseller. Orders will be made out to and submitted to the Registered Affiliate's Reseller. Microsoft will invoice that Reseller according to the terms in the applicable registration. The Reseller and the Registered Affiliate will determine the Registered Affiliate 's actual price and payment terms. b. Choosing and maintaining a Reseller. Each Registered Affiliate must choose and maintain a Reseller authorized in the Registered Affiliate's region. c. Online Services. Online Services are provided as subscription services and are subject to the unique terms set forth in the Product Use Rights and the Product List.
3. How to establish price level.
Establishing price levels. Each Product offering is assigned a point value on the Product List and is assigned to a Product pool. . The Customer's price level for a pool applies to purchases made by all Registered Affiliates under this agreement. Throughout the term of this agreement, the Customer's price level for each Product and its associated Pool (Applications, Systems and Servers) will be level "D." Customer does not need to acquire Products in all pools. The price Microsoft will invoice Reseller will be based on Customer's price level for the pool of the Product ordered. Throughout this agreement the term "price" refers to reference price.
4. License grant - what Registered Affiliates are licensed to run.
Registered Affiliates have· the rights below once their registration is accepted by Microsoft. These rights apply to the Licenses obtained under this agreement and are not related to any order of, or fulfillment of, software media.
The ability to run current or later versions of a Product licensed under this agreement could be affected by minimum system requirements or other factors (e.g., hardware or other software). a. General. At any time after their registration has been accepted by Microsoft, a Registered Affiliate may run for its own benefit as many copies as it chooses, of any available Products it chooses, provided that it submits Orders for all copies in the month in which those copies are first run.
b. Use by Affiliates. A Registered Affiliate may sublicense the right to use the Products ordered under this agreement to any of its Affiliates, but Affiliates may not sublicense these rights and their use must be consistent with the License terms contained in this agreement.
SelectPlus 2012AgrGov(U S )SLG(ENG )(Oct201 2) Page 3 of 16 Document X20-04874
45 c. When Licenses become perpetual.
(i) License only. Registered Affiliate's right to run copies of any Product for which it orders only a License is temporary until the Registered Affiliate has paid for that License in full and Microsoft has collected such payment. Thereafter, Registered Affiliate will have a perpetual License to run the number of copies ordered in the version ordered. (ii) L&SA or Software Assurance. Registered Affiliate's right to run copies of any Product for which it orders L&SA or Software Assurance is temporary until:
1) the Registered Affiliate has paid all installments of the price for such coverage and the Order or renewal term during which such Product Licenses were ordered has expired or been renewed or
2) the Registered Affiliate is otherwise eligible for perpetual Licenses as provided in this agreement.
Thereafter, the Registered Affiliate will have perpetual Licenses to run the Products ordered in the latest versions available as of the date of expiration, renewal, or termination (or any prior version) for the number of copies ordered or renewed. (iii) Subscription Licenses. Subscription Licenses are not perpetual under any circumstances.
d. Perpetual Licenses through Software Assurance. Any perpetual Licenses received through Software Assurance supersede and replace the underlying perpetual Licenses for which that Software Assurance coverage was ordered. All perpetual Licenses acquired under this agreement remain subject to the terms of this agreement and the applicable Product Use Rights.
e. Non-Perpetual Licenses. Some Products may be licensed on a fixed term or subscription basis. The right to Use Products licensed on a subscription basis terminates upon expiration of the subscription agreement if it is not renewed.
f. License confirmation. This agreement, the applicable Order, the Registered Affiliate's Order confirmation, and any documentation evidencing transfers of Licenses, together with proof of payment, will be the Registered Affiliate's evidence of all Licenses obtained under its Order as described in this agreement.
g. Prior version rights. A Registered Affiliate may run prior versions of any Product it Licenses under this agreement. A Registered Affiliate may run different language versions of any Product it Licenses under this agreement, provided that the License, L&SA, or Software Assurance for that different language version is available at the same, or lower price, than the price paid for the language version ordered of the same Product and License type.
5. How to know what Product Use Rights apply.
a. Product Use Rights. Microsoft publishes Product Use Rights for each version of each Product. The latest version of the Product Use Rights is available at http://www.microsoft.com/licensing/contracts.
(i) Product Use Rights for current and future versions of Products. The Product Use Rights in effect on the effective date of the agreement will apply to all Registered Affiliates' use of then-current versions of each Product, regardless of the date of the Order. For future versions, the Product Use Rights in effect when those future versions are first released will apply. In both cases, subsequent changes made by Microsoft to the Product Use Rights for a particular version will not apply to Registered Affiliates' use of that version.
(ii) Product Use Rights for earlier versions (downgrade). If a Registered Affiliate runs an earlier version of a Product than the version that was current on the agreement effective SelectPlus2012AgrGov(US)SLG(ENG)(Oct2012) Page 4 of 16
Document X20-04874
46 date, the Product Use Rights for the version licensed, not the version being run, will apply. However, if the earlier version includes components that are not part of the licensed version, any Product Use Rights specific to those components will apply to the Registered Affiliate's use of those components.
b. Reservation of rights. All rights not expressly granted are reserved by Microsoft. In lieu of Customer's obligation to indemnify Microsoft under various provisions of the Product Use Rights, Customer will be responsible for any cost or damages arising from any claim to which Customer's indemnity obligation would otherwise apply.
6. How to order Product Licenses.
a. Placing Orders. Registered Affiliate may purchase Licenses and Online Services Microsoft makes available under this program by placing Orders with Registered Affiliate's authorized Reseller. The price and payment terms for all Orders will be determined by agreement between Registered Affiliate and its Reseller. When placing orders, a Registered Affiliate must specify the country or countries where the Registered Affiliate will use the Licenses.
Microsoft may refuse to accept an Order if Microsoft has a business reason to do so.
Microsoft may change the Products and subscription services available under this program. b. When is the Registered Affiliate eligible to order just Software Assurance? A Registered Affiliate may order Software Assurance for copies of a Product, without the need to simultaneously order a new License for those copies, in each of the following circumstances:
(i) Registered Affiliate may order Software Assurance for copies of Products for which the Registered Affiliate has previously obtained perpetual Licenses through Upgrade Advantage, Software Assurance, or any similar upgrade protection, so long as the Order for Software Assurance under this Agreement becomes effective no later than one day following the expiration of that upgrade protection, and (2) Registered Affiliate submits an order for another term of Software Assurance for those Licenses prior to or at the expiration of the previous term.
(ii) During the term of the Agreement (including any renewal term), a Registered Affiliate may be eligible to order Software Assurance for copies of certain Products licensed through retail sources or from an original equipment manufacturer ("OEM"), provided that the Registered Affiliate places its Order within the required time frame. The Product List at http://www.microsoft.com/licensinq/contracts identifies those Products that may be enrolled in Software Assurance and the applicable time frame for placing an Order. (iii) A Registered Affiliate may also order Software Assurance in any other circumstances expressly permitted in the Product List.
(iv) A Registered Affiliate may renew Software Assurance ordered under this Agreement at the time it renews its Order as described in the section titled "How to renew an Order." c. How to confirm Orders. Information about Orders, including an electronic confirmation of each Order, will be provided in a password-protected site on the World Wide Web at https://www.microsoft.com/licensinq/servicecenter/ or a successor site that will be identified.
Upon Microsoft's acceptance of this agreement, Registered Affiliate's contact identified for this purpose will be provided access to this site.
d. Invoices and payments. For any Orders for Software Assurance or L&SA, if the Registered Affiliate elects to spread its payments over three years rather than payment in a lump sum, it may make this election with its Reseller. In such cases, Microsoft will invoice the Registered Affiliate's Reseller in installments, the first installment upon receipt of the Order and subsequent installments on each anniversary of the Order or the Affiliate anniversary month.
Any amounts for Licenses only (i.e. without accompanying Software Assurance) will be invoiced to the Registered Affiliate's Reseller in full upon receipt of the Order.
SelectPlus2012AgrGov(US )SLG(ENG )(Oct2012) Page 5 of 16 Document X20-04874
47 e. Changing a Reseller. If Microsoft or the Reseller chooses to discontinue doing business with one another, Registered Affiliate must choose a replacement Reseller. If Registered Affiliate or Reseller intends to terminate their relationship, the initiating party must notify Microsoft and the other using a form provided by Microsoft at least 90 days prior to the date on which the change is to take effect.
7. Making copies of Products and re-imaging rights.
a. General. The Registered Affiliate may make as many copies of the Products as it needs to distribute them within its organization. Copies must be true and complete (including copyright and trademark notices), from master copies obtained from a Microsoft approved fulfillment source. The Registered Affiliate may use a third party to make these copies, but the Registered Affiliate agrees that it will be responsible for that third party's actions. The Registered Affiliate agrees to use reasonable efforts to make its employees, agents and any other individuals that it allows to use the Products aware that the Products are licensed from Microsoft and can only be transferred subject to the terms of this agreement. b. Copies for training, evaluation, and back-up. The Registered Affiliate may (1) use up to 20 complimentary copies of any Product in a dedicated training facility on its premises, (2) use up to 10 complimentary copies of any Product for a 60-day evaluation period, and (3) use one complimentary copy of any licensed Product for back-up or archival purposes for each of its distinct geographic locations.
c. Right to "re-image." In certain cases, re-imaging is permitted using the volume licensing program Product media. If the Microsoft Product(s) 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 be generally 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 owned from the 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) must be identical to the Product type from the separate source.
(iv) Any Product-specific requirements for re-imaging identified in the Product List. (v) Re-images made under this subsection remain subject to the terms and use rights provided with the License from the separate source. This subsection does not create or extend any warranty or support obligation.
8. Transferring and reassigning Licenses.
a. License transfers. License transfers are not permitted, except that Customer may transfer fully-paid perpetual licenses to:
Transferring Licenses to third parties. You may transfer fully-paid perpetual Licenses:
(i) if you are an agency of a state or local government to: (a) any other government agency, department, instrumentality, division, unit or other office of your state or local government that is supervised by or is part of you, or which supervises you or of which you are a part, or which is under common supervision with you; (ii) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of your state and located within SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 6 of 16 Document X20-04874
48 your state's jurisdiction and geographic boundaries; and (iii) any other entity expressly authorized by the laws of your state to purchase under state contracts, or (b) an unaffiliated third party in connection with a privatization of an affiliate of agency as set forth in (a) above or of an operating division of the Enrolled Affiliate or one if its affiliates as set forth in (a) above, a reorganization, or a consolidation.
Customer must notify Microsoft of a transfer of license by completing a transfer notice form, which can be obtained from http://www.microsoft.com/licensinq/contracts and send 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 Product 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. b. Internal Reassignment of Licenses and Software Assurance. (i) For Products other than the desktop operating system upgrade. For Products other than the desktop operating system upgrade, Registered Affiliate may internally reassign Licenses to an Affiliate. However, Registered Affiliate may not reassign Licenses on a short-term basis (90 days or less), or reassign Software Assurance or other upgrade coverage separately from the underlying License, except as provided otherwise in this agreement.
(ii) For desktop operating systems. The Registered Affiliate may not reassign desktop operating system upgrade Licenses from one computer to another. The Registered Affiliate may internally reassign Software Assurance coverage on desktop operating systems upgrades from the original computer to a replacement computer internally, as long as (1) the replacement computer is licensed to run the latest version of that operating system, and (2) the Registered Affiliate removes any desktop operating system upgrades from the original computer.
9. Term and termination.
a. Term. This agreement will remain in effect unless it is terminated by either party as described below.
b. Termination without cause. Either party may terminate this agreement without cause upon 60 days written notice. Such termination will merely terminate either party's and its Registered Affiliates' ability to place Orders under this agreement. Such termination will not affect any Orders not otherwise terminated, and any terms of this agreement applicable to any Orders not otherwise terminated will continue in effect with respect to that Order. c. Mid-term termination for non-appropriation of Funds. Enrolled Affiliate may terminate this agreement or an Enrollment without liability, penalty or further obligation to make payments if funds to make payments under the agreement or Enrollment are not appropriated or allocated by the Enrolled Affiliate for such purpose. d. Termination for breach. Either party to an Order may terminate it if the other party materially breaches its obligations under this agreement, including any obligation to pay amounts owed. Except where the breach is by its nature not curable within 30 days, the terminating party must give the other party 30 days' notice and opportunity to cure. If Microsoft gives such notice to a Registered Affiliate, Microsoft will give Customer a copy of that notice as well and Customer agrees to assist in attempting to resolve the problem. If the problem also affects other Affiliate registrations and cannot be resolved between Customer and Microsoft within a reasonable period of time, Microsoft may also terminate this agreement and all other Affiliate registrations under it, unless the basis for termination of the registration is non-appropriation of funds to the registered affiliate, in which event Microsoft may only terminate the affected registration(s). If a Registered Affiliate ceases to be an SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 7 of 16 Document X20-04874
49 Affiliate of Customer, Customer must promptly notify Microsoft of this fact, and Microsoft may terminate the divested Registered Affiliate's registration. e. Affiliate termination. If (1) a Registered Affiliate terminates its registration as a result of a breach by Microsoft, or (2) if Microsoft terminates Registered Affiliate's registration because it has ceased to be an Affiliate of Customer, or (3) Registered Affiliate terminates a registration for non-appropriation of funds, or (4) Microsoft terminates a registration for non-payment due to non-appropriation of funds,, then the Registered Affiliate will have the following options with regard to any Orders it has under the agreement:
(i) For Licenses available on a perpetual basis, it may immediately pay the total remaining amount due, including all installments, in which case the Registered Affiliate will have perpetual Licenses for all copies of the Products it has ordered, or (ii) It may pay only amounts due as of the termination date, in which case the Registered Affiliate will have perpetual Licenses for:"
1) all copies of all Products for which payment has been made in full (including the latest version of Products under Software Assurance coverage), and 2) the number of copies of Products it has ordered (including the latest version of Products under Software Assurance) for which payment has been made in installments that is proportional to the total of payments made versus total amounts due if the early termination had not occurred.
Nothing in this section shall affect perpetual License rights acquired either in a separate agreement or in a prior term of the terminated registration. f. Effect of termination. When this agreement, a registration or an Order is terminated, (i) Each affected Registered Affiliate must order Licenses for all copies of Products it has run for which it has not previously submitted an Order. Except for the options provided above in the event of termination of a Registered Affiliate's registration, any and all unpaid payments or any order of any kind, including subscription services, immediately become due and payable.
(ii) Registered Affiliate's right to Software Assurance benefits under this agreement ends for all Software Assurance for which payment has not been made in full.
10. How to renew an Order.
Microsoft will provide prior notice of expiration of any Software Assurance ordered under the agreement advising Customer of its Software Assurance renewal options. Microsoft may make a change to this program that will make it necessary for Customer to enter into a new agreement to renew Software Assurance.
To maintain Software Assurance coverage for any copies previously ordered under this agreement, Registered Affiliate must submit an Order for another term of Software Assurance for those Licenses prior to or on the expiration of the previous term.
Consequences of non-renewal. If Registered Affiliate elects not to place another Order for Software Assurance and it otherwise allows Software Assurance for any copies of any Products licensed to lapse, then the Registered Affiliate will not be permitted to order Software Assurance for those copies later without first acquiring L&SA.
Renewing Software Assurance. If Registered Affiliate is placing an Order for Software Assurance from multiple Select programs or is consolidating multiple previous Enrollments or agreements into this agreement, please complete the multiple previous Enrollment form.
SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 8 of 16 Document X20-04874
50 11. Restrictions on use.
Registered Affiliate must not:
a. separate and use the components of a Product on two or more computers, upgrade or downgrade components at different times, or transfer components separately, except as provided in the Product Use Rights;
b. reverse engineer, decompile or disassemble any Product or Fix, except where applicable law permits it despite this limitation; or
c. distribute, sublicense, rent, lease, lend, or host any Product or Fix except as permitted by this Agreement, the Product Use Rights, or in a separate written agreement
12. Confidentiality.
To the extent permitted by applicable law, the terms and conditions of this Agreement is confidential.
Neither party will disclose such terms and conditions, or the substance of any discussions that led to them, to any third party other than Affiliates or agents, or to designated or prospective resellers who: (1) have a need to know such information in order to assist in carrying out this agreement; and (2) have been instructed that all such information is to be handled in strict confidence.
For the avoidance doubt, the parties acknowledge that this Confidentiality provision recognizes that when there is a business need to do so, Microsoft and Customer may need to share/exchange their respective Confidential Information with each other to develop a more meaningful business relationship. This section provides Microsoft and Customer with a well-balanced, commercially reasonable and comprehensive set of confidentiality terms that enable both parties to share/exchange a wide range of Confidential Information with each other knowing with confidence that significant confidentiality protections are in place. The confidentiality terms denoted below do not govern Microsoft's handling of Customer Data. In all instances under this Agreement, Microsoft's handling of Customer Data shall be governed as described under various other provisions of this Agreement and by Microsoft's data security policy. a. What is included. "Confidential Information" is non-public information, know-how and Trade Secrets in any form that are designated as "confidential" or a reasonable person knows or reasonably should understand to be confidential. It includes non-public information regarding either party's products or customers, marketing and promotions, or the negotiated terms of Microsoft agreements.
b. What is not included. The following types of information, however marked, are not Confidential Information. Information that:
(i) is, or becomes, publicly available without a breach of this agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential;
(iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential;
(iv) is independently developed; or
(v) is a comment or suggestion one party volunteers about the other's business, products or services.
c. Treatment of Confidential Information.
(i) In general. Subject to the other terms of this agreement, each party agrees:
1) it will not disclose the other's Confidential Information to third parties; and 2) it will use and disclose the other's Confidential Information only for purposes of the parties' business relationship with each other.
SelectPlus 201 2AgrGov(U S)SLG(EN G )(Oct201 2) Page 9 of 16 Docum ent X20-04874
51 (ii) Security precautions. Subject to the other terms of this agreement, each party agrees:
1) to take reasonable steps to protect the other's Confidential Information -- these steps must be at least as protective as those the party takes to protect its own Confidential Information;
2) to notify the other promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and
3) to cooperate with the other to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.
(iii) Sharing Confidential Information with Affiliates and representatives. 1) A "Representative" is an employee, contractor, advisor, or consultant of one of the parties or of one of the parties' Affiliates.
2) Each party may disclose the other's confidential information to its Representatives (who may then disclose that Confidential Information to other of that party's Representatives) only if those Representatives have a need to know about it for purposes of the parties' business relationship with each other. Before doing so, each party must:
A. ensure that Affiliates and Representatives are required to protect the Confidential Information on terms consistent with this agreement; and B. accept responsibility for each Representative's use of Confidential Information. 3) Neither party is required to restrict work assignments of Representatives who have had access to Confidential Information. Neither party can control the incoming information the other will disclose to it in the course of working together, or what that party's Representatives will remember, even without notes or other aids. Each party agrees that use of information in Representatives' unaided memories in the development or deployment of the parties' respective products or services does not create liability under this agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
(iv) Disclosing Confidential Information if required to by law. Each party may disclose the other's Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, each party must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order. d. Length of Confidential Information obligations. Except as permitted above, neither party will use or disclose the other's Confidential Information for five years after it is received. The five-year time period does not apply if applicable law requires a longer period or the Product Use Rights provide a more specific requirement.
13. Warranties.
a. Limited warranty. Microsoft warrants that:
(i) Online Services will perform in accordance with the applicable Service Level Agreement; (ii) Products other than Online Services will perform substantially as described in the applicable Microsoft user documentation; and
b. Limited warranty term. The limited warranty for:
(i) Online Services is for the duration of Customer's use of the Online Service, subject to the notice requirements in the applicable Service Level Agreement; SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 10 of 16 Document X20-04874
52 (ii) Products other than Online Services is one year from the date Customer first uses the Product; and
c. Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law last for one year from the start of the limited warranty; (ii) the limited warranty does not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement or the Product Use Rights, or resulting from events beyond Microsoft's reasonable control;
(iii) the limited warranty does not apply to components of Products that Customer is permitted to redistribute;
(iv) the limited warranty does not apply to free, trial, pre-release, or beta products; and (v) the limited warranty does not apply to problems caused by the failure to meet minimum system requirements.
d. Remedies for breach of limited warranty. If Microsoft fails to meet any of the above limited warranties and Customer notifies Microsoft within the warranty term, then Microsoft will:
(i) for Online Services, provide the remedies identified in the Service Level Agreement for the affected Online Service;
(ii) for Products other than Online Services, at its option either (1) return the price paid or (2) repair or replace the Product; and
These are Customer's only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law. e. DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANTY,
MICROSOFT PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. MICROSOFT DISCLAIMS ANY IMPLIED REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, OR NON INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.
14. Defense of infringement, misappropriation, and third party claims. a. Microsoft's agreement to protect. Microsoft will defend Enrolled Affiliate against any claims made by an unaffiliated third party that any Product or Fix that is made available by Microsoft for a fee infringes that party's patent, copyright, or trademark or makes unlawful use of its Trade Secret. Microsoft will also pay the amount of any resulting adverse final judgment (or settlement to which Microsoft consents). This section provides Enrolled Affiliate's exclusive remedy for these claims.
b. Limitations on defense obligation. Microsoft's obligations will not apply to the extent that the claim or award is based on:
(i) Customer Data, non-Microsoft software, modifications Enrolled Affiliate makes to, or any specifications or materials Enrolled Affiliate provides or makes available for, a Product or Fix.;
(ii) Enrolled Affiliate's combination of the Product or Fix with a non-Microsoft product, data or business process; or damages based on the use of a non-Microsoft product, data or business process; ;
(iii) Enrolled Affiliate's use of either Microsoft Trademarks or the use or redistribution of a Product or Fix in violation of this agreement or any agreement incorporating its terms or; SelectPlus2012AgrGov(US )SLG(ENG)(Oct2012) Page 11 of 16 Document X20-04874
53 (iv) Enrolled Affiliate's use of a Product or Fix after Microsoft identifies Enrolled Affiliate to discontinue that use due to a third party claim.
To the extent permitted by applicable law, Enrolled Affiliate will be responsible Microsoft for any costs or damages that result from any of the above actions. c. Enrolled Affiliate's agreement to protect. To the extent permitted by applicable law, Enrolled Affiliate will defend Microsoft and its Affiliates against any claims made by an unaffiliated third party that:
(i) 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
(ii) Arises from violation of the Acceptable use Policy, which is described in the Product Use Rights.
Customer will be responsible for the amount of any resulting adverse final judgment (or settlement to which it consents). This Section provides Microsoft's exclusive remedy for these claims.
d. Rights and remedies in case of possible infringement or misappropriation. (i) Microsoft's offerings. If Microsoft reasonably believes that a Product or Fix may infringe or misappropriate a third-party's intellectual property rights, Microsoft will seek to: (1) procure for Enrolled Affiliate the right to continue to use the Product or Fix; or (2) modify or replace it with a functional equivalent to make it non-infringing and notify Enrolled Affiliate to discontinue use of the prior version, which Enrolled Affiliate must do immediately. If the foregoing options are not commercially reasonable for Microsoft, or if required by a valid judicial or government order, Microsoft may terminate Enrolled Affiliate's license or access rights in the Product or Fix. In such a case, Microsoft will provide Enrolled Affiliate with notice and refund any amounts Enrolled Affiliate has paid for those rights to the Product or Fix ( or for Online Services, any amount Enrolled Affiliate has paid in advance for unused Online Services).
(ii) Customer Data or use of non-Microsoft software with Online Services. If an unaffiliated third party asserts that Customer Data or non-Microsoft software or technology used by Enrolled Affiliate the Online Services violates their intellectual property rights, Microsoft may ask Customer to remove the allegedly infringing item. If Enrolled Affiliate fails to do so within a reasonable period of time, Microsoft may suspend or terminate the Online Service to which the Customer Data or non-Microsoft software relates.
e. Obligations of protected party. Enrolled Affiliate must notify Microsoft promptly in writing of a claim subject to the Subsection titled "Microsoft's agreement to protect" and Microsoft must notify Enrolled Affiliate promptly in writing of a claim subject to the Subsection titled "Customer's agreement to protect." The party invoking its right to protection must (1) give the other party sole control over the defense or settlement; and (2) 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.
15. Limitation of liability.
a. Limitation on liability. To the extent permitted by applicable law, the liability of each party, its Affiliates, and its Contractors arising under this agreement is limited to direct damages up to (1) for Products other than Online Services, the amount Customer paid for the Product giving rise to that liability and (2) for Online Services, the amount Customer was required to pay for the Online Service giving rise to that liability during the prior 12 months. In the case of Products provided free of charge, or code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft's liability is limited to U.S.
SelectPlus2012AgrGov(US)SLG(ENG)(Oct2012) Page 12 of 16 Document X20-04874
54 $5,000. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
(i) Microsoft's and Customer's obligations under the section titled "Defense of infringement, misappropriation, and third party claims";
(ii) liability for damages caused by either party's gross negligence or willful misconduct, or that of its employees or its agents, and awarded by a court of final adjudication (provided that, in jurisdictions that do not recognize a legal distinction between "gross negligence" and "negligence," "gross negligence" as used in this subsection shall mean "recklessness");
(iii) liabilities arising out of any breach by either party of its obligations under the section entitled "Confidentiality", except that Microsoft's liability arising out of or in relation to Customer Data shall in all cases be limited to the amount Customer paid for the Online Service giving rise to that liability during the prior 12 months; (iv) liability for personal injury or death caused by either party's negligence, or that of its employees or agents, or for fraudulent misrepresentation; and (v) violation by either party of the other party's intellectual property rights. b. EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF
ITS 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 ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO
EITHER PARTY'S LIABILITY TO THE OTHER FOR VIOLATION OF ITS
CONFIDENTIALITY OBLIGATIONS (EXCEPT TO THE EXTENT THAT SUCH VIOLATION
RELATES TO CUSTOMER DATA), THE OTHER PARTY'S INTELLECTUAL PROPERTY
RIGHTS, OR THE PARTIES' RESPECTIVE OBLIGATIONS IN THE SECTION TITLED "DEFENSE OF INFRINGEMENT, MISAPPROPRIATION, AND THIRD PARTY CLAIMS." c. Affiliates and Contractors. Neither Microsoft nor Customer shall bring any action against the other's Affiliates or Contractors in respect of any matter disclaimed on their behalf in this agreement. Each party will indemnify the other in the event of any breach of this provision.
16. Verifying compliance.
a. Right to verify compliance. Customer must keep records relating to the Products it and its Affiliates use or distribute. Microsoft has the right, to the extent permitted by applicable law, to verify compliance with the license terms for the Products, at Microsoft's expense. b. Verification process and limitations. Microsoft will provide customer at least 30 days' notice of its intent to verify compliance. Microsoft will engage an independent auditor, which will be subject to a confidentiality obligation. Verification will take place during normal business hours and in a manner that does not interfere unreasonably with Customer's operations. Customer must promptly provide the independent auditor with any information it reasonably requests in furtherance of the verification, including access to systems running the Products and evidence of licenses for Products Customer hosts, sublicenses, or distributes to third parties. As an alternative, Microsoft may require Customer to complete Microsoft's self-audit process relating to the Products Customer and any of its Affiliates use or distribute. Such information will be used solely for purposes of determining compliance. c. Remedies for non-compliance. If verification or self-audit reveals any unlicensed use, Customer must within 30 days order sufficient licenses to cover its use. If there is no SelectPlus2012AgrGov(US)SLG(ENG)(Oct2012) Page 13 of 16 Document X20-04874
55 unlicensed use, Microsoft will not undertake another verification of the same Customer for at least one year. By exercising the rights and procedures described above, Microsoft does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law.
17. Non-Microsoft Software or Technology.
a. Registered Affiliate is solely responsible for any non-Microsoft software or technology that it installs or uses with the Products or Fixes. Microsoft is not a party to and is not bound by any terms governing Enrolls use of non-Microsoft software or technology. Without limiting the foregoing, non-Microsoft software or scripts linked to or referenced from any Product website, are licensed to Registered Affiliate under the open source licenses used by the third parties that own such code, not by Microsoft.
b. If Registered Affiliate installs or uses any non-Microsoft software or technology with the Products or Fixes, it directs and controls the installation in and use of such software or technology in the Products or Fixes, through its actions (e.g., through Registered Affiliate's use of application programming interfaces and other technical means that are part of the Online Services). Microsoft will not run or make any copies of such non-Microsoft software or technology outside of its relationship with Registered Affiliate. c. If Registered Affiliate installs or uses any non-Microsoft software or technology with the Products or Fix, it may not do so in any way that would subject Microsoft's intellectual property or technology to obligations beyond those included in the agreement.
18. Miscellaneous.
a. Notices to Microsoft. Notices, authorizations, and requests in connection with this agreement must be sent by regular or overnight mail, express courier, or fax to the addresses and numbers listed in this agreement. Notices will be treated as delivered on the date shown th t • t th • f confirmation of delivery . •
Copies should be sent to:
Microsoft Corporation
Legal and Corporate Affairs
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
USA
Via Facsimile:(425) 936-7329
b. Assignment. Either party may assign this agreement to an Affiliate only. Assignment will not relieve the assigning party of its obligations under the assigned agreement. If either party assigns this agreement, it must notify the other party of the assignment in writing. c. Subcontractors. Microsoft may use contractors to perform Services and support Online Services. Microsoft will be responsible for their performance subject to the terms of this agreement.
d. Severability. If a court holds any provision of this agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this agreement will be amended to give effect to the eliminated provision to the maximum extent possible. e. Waiver. A waiver of any breach of this agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 14 of 16 Document X20-04874
56 f. Applicable law; dispute resolution. The terms of this agreement will be governed by the laws of Registered Affiliate's state, without giving effect to its conflict of laws. Disputes relating to this agreement will be subject to applicable dispute resolution laws of Registered Affiliate's state.
g. This agreement is not exclusive. Customer is free to enter into agreements to license, use or promote non-Microsoft software.
h. Entire agreement. This agreement, the Product List, all registrations under this agreement, and the Product Use Rights constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications . In the case of a conflict between any of these documents that is not resolved expressly in the documents, their terms will control in the following order: (1) these terms and conditions and the accompanying signature form; (2) the Product List; (3) the Product Use Rights; (4) all registrations under this agreement; and (5) all Orders submitted under this agreement. The terms of any purchase order or any general terms and conditions Customer maintains do not apply. i. Survival. Provisions regarding ownership and License rights, fees, Product use rights, restrictions on use, evidence of perpetual Licenses, transfer of Licenses, warranties, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, open source license restrictions, obligations on termination or expiration and the other provisions in this section entitled "Miscellaneous" will survive termination or expiration of this agreement and of any agreement in which they are incorporated. j. No transfer of ownership. Microsoft does not transfer any ownership rights in any licensed Product. Microsoft reserves all rights not specifically granted. The Products are protected by copyright and other intellectual property rights laws and international treaties. k. Free Products. It is Microsoft's intent that the terms of this agreement and the Product Use Rights be in compliance with all applicable federal law and regulations. Any free Product provided to Registered Affiliate is for the sole use and benefit of the Registered Affiliate, and is not provided for use by or personal benefit of any specific government employee.
I. Amending the agreement. This agreement (except the Product List and the Product Use Rights) can be changed only by an amendment signed by both parties. m. 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 on Microsoft. n. Privacy and Security. Microsoft and Enrolled Affiliate will each comply with all applicable privacy and data protection laws and regulations (including applicable security breach notification law). However, Microsoft is not responsible for compliance with any laws applicable to Enrolled Affiliate or Enrolled Affiliate's industry that are not also generally applicable to information technology services providers. Enrolled Affiliate consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. Enrolled Affiliate may choose to provide personal information to Microsoft on behalf of third parties (including Enrolled Affiliate's contacts, resellers, distributors, administrators, and employees) as part of this agreement. Enrolled Affiliate will obtain all required consents from third parties under applicable privacy and data protection law before providing personal information to Microsoft.
The personal information Enrolled Affiliate provides in connection with this agreement will be processed according to the privacy statement available at https://www.microsoft.com/licensing/servicecenter (see footer), except that Product-specific privacy statements are in the Product use rights. Personal data collected through Products or Services may be transferred, stored and processed in the United States or any other country in which Microsoft or its service providers maintain facilities. By using the Products or Services, Customer consents to the foregoing. Microsoft abides by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce SelectPlus2012AgrGov(US)SLG(ENG )(Oct2012) Page 15 of 16 Document X20-04874
57 regarding the collection, use, and retention of data from the European Union, the European Economic Area, and Switzerland.
For Online Services, additional privacy and security details are in the Product use rights. o. Natural disasters. In the event of a "natural disaster", Microsoft may provide additional assistance or rights by posting on http://www.microsoft.com at such time. p. Copyright violation. Except as set forth in section above entitled "Transferring and reassigning Licenses", the Registered Affiliate agrees to pay for, and comply with the terms of this agreement and the Product Use Rights, for the Products it uses. Except to the extent Registered Affiliate is licensed under this agreement, it will be responsible for its breach of this contract and violation of Microsoft's copyright in the Products, including payment of License fees specified in this agreement for unlicensed use. q. U.S. export jurisdiction. Products and Fixes are subject to U.S. export jurisdiction.
Customer will comply with all U.S. Export Administration Regulations and International Traffic in Arms Regulation requirements as well as all end-user, end-use, and destination restrictions issued by the U.S. and other governments applicable to this agreement. For additional information, see http://www.microsoft.com/exporting.
SelectPlus2012AgrGov(US)SLG(ENG)(Ocl2012) Page 16 of 16 Document X20-04874
58 Dell Customer Communication - Confidential
II Microsoft Volume Licensing
Change of Reseller
By accurately completing and submitting to Microsoft this Change of Reseller form (hereafter Change of Channel Partner or COCP), Customer is providing to Microsoft written notification of the change.
Microsoft will update its records and systems according to the information Customer provides.
By signing below, Customer represents and agrees that:
• Customer has confirmed that the newly appointed Reseller is from a list of authorized Resellers to offer Microsoft Volume Licensing Products. • To be valid this form must be signed by both the newly appointed Reseller and Customer. • This form must be sent to Microsoft no later than 10 calendar days after Customer's signature date. A delay may occur in recording this change, from receipt of this notice to the date of the change.
• Customer must notify Microsoft in writing using this form, and no other form of notification will be considered valid.
• Customer must notify the previous Reseller in writing by its own means provided that such notification be served before or no later than the date of sign�ture of this form by Customer .. • Customer agrees that all amounts due before the CQCP· eff�'cfive date will be paid to the previous Reseller. On or after the COCP effecfo,1�•·date"'. .Cistbriler aod the newly appointed Reseller agree that for Microsoft Volume L)cfn'smg .• .J,'.rQcl.�ts anf "'
s;n1ices under the
Agreements/Enrollm nts/PO listed below: (1):all·E;91-respbndil"),9 'ilmo_unts dl.i�;b'S'. � stomer will be paid to the newl �i:t.ointed Reseller, ancf(2) the ne�iy.appo)�tei:
f
lResellefij,,11 bt provide
such Product . ice� to otheS i§ntftit:fs, 'including'tfit'pr�vious·R€'s"'e·1_1e(k "-· ale or distributio � u'ti"Je�s,auti;i · · d · ,ritjng�:b,:-•Microsoft. '."· ''"' J ·. , I,t1e:,.n • R,�s���wlf�; ; ib·,;·f<?�P;Xi�g·a;I �n�econcj;;d,E),nhne· ·erw1 es "'R[��rvations. e\/en·-.yhfre thfse re ·qns··wen:l':pJaced _undenh�. p"revi9us RJs1}ler . ..- •" � • •• • ,"'f ... _, ·'• l � . 'l • . . . ,1.'t
• cuitomer is responsible for �Orkin . .. \h� art\:l�gements f �lated,�tR_this change with both the previous Reseller and the new 1Qte0 R'eseller, and'.Oustomer 1s responsible for ensuring all obligations to the previous ler are met. Customer agrees to hold Microsoft harmless ,from any disputes arising out of ny' pay(ment(s) made, or any credit issued, to an incorrect eseller. as a result of this change.
'(>,-, •• .,.
Other-sections of Customer's program documents may be affected by this change. If ' Customer has designated the Reseller· as a contact elsewhere throughout the program documents, those designations must also be updated to reflect this change. Plea;:,e-tontact the newly appointed Reseller to change Customer's contact details. • If the newly appointed Reseller finds any compliance issues relative to the Reseller Agreement with the inherited deals from the prior Reseller, then newly appointed Reseller will raise the concerns to Microsoft within 30 calendar days from the effective change date.
1. COCP effective date.
Microsoft will apply the COCP effective date at the end of the prior notice period as defined in the applicable Customer agreement and no later than 90 days after the date of signature of this form by the Customer.
If the parties agree with the previous Reseller to set the COCP effective date at an earlier date, the Early COCP Effective Date Form should be completed and signed by both parties and the previous Reseller.
ChangeOfReseller(WW)( ENG )(Apr2021) Page 1 of 3
Document X20-10045
Attachment C
59 60
61