MICROSOFT VENDOR SERVICES
AGREEMENT
PARTY #1
“Microsoft”
Business Name:
Microsoft Corporation
Street Address:
One Microsoft Way
City, State, Zip Code:
Redmond, WA 98052-6399
Microsoft Business Contact:
Name:_****
Email:_****
PARTY #2
“Vendor”
MS Vendor Number
****
Business Name:
Rainmaker Systems, Inc.
Street Address:
1908 Kramer Lane, Suite B-300
City, State, Zip Code:
Austin, TX
Vendor Business Contact:
Name:****
Email:****
Agreement Effective Date
(“Effective Date”):
02/26/2010
Term of Agreement (“Term”):
From Effective Date until terminated under
Section 11 (Term of
Agreement)
.
List of Exhibits/Addenda:
Addendum
– For the Provision of Contact Center Service;
Exhibit A
–
Statement of Work;
Exhibit B
– Non-Disclosure Agreement;
Exhibit
C
– Business Continuity Management (BCM) Framework;
Exhibit D
–
Additional Vendor Obligations
At all times during the Term, Vendor shall select one employee with authority to make binding decisions for
Vendor with respect to the Agreement and any SOW.
This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and
supersedes all oral understandings, representations, prior discussions, preliminary agreements, and the default
terms of any Microsoft purchase order issued for Work. The terms of the Agreement shall apply to all Work
Orders and Statements of Work between the parties. Any representations, warranties, promises or conditions not
expressly contained herein or in a written work order or statement of work signed by both parties, shall not be
binding upon the parties. This Agreement does not constitute an offer by Microsoft and it shall not be effective
until signed by both parties.
Vendor
Signature:
Print Name:
Print Title:
Date:
Microsoft
Signature:
Print Name:
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Print Title:
Date:
CONTACT AND NOTICES INFORMATION
Address for Notices.
The parties must send legal notices, including notices relating to a breach or termination
of this Agreement or a waiver of any right or obligation in this Agreement, to the address indicated in the Legal
Notice Contact Information table below. Each party must notify the other in writing of any changes to the Legal
Notice Contact Information. The parties must send any other communication required by this Agreement to the
applicable business contact indicated in the Business Contact Information table below.
Legal Notice Contact Information
Microsoft
Vendor
Contact/Title:
****
Address:
One Microsoft Way, Redmond, WA 98052
Phone Number:****
Fax Number:****
Email Address:****
Contact/Title:
****
Address:
900 E Hamilton Ave Ste 400
Phone Number:
Fax Number ****
Email Address:
****
With Copy To:
Contact/Title:
Legal & Corporate Affairs
Address:
One Microsoft Way, Redmond, WA 98052
Fax Number:*****
With Copy To:
Contact/Title:
****
Address:
900 E Hamilton Ave Ste 400
Fax Number:
****
Notices must be in writing. Notices shall be deemed given on the day deposited in the United States mail
(postage prepaid, certified or registered, return receipt requested) or sent by recognized national or international
air express courier with charges prepaid.
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GENERAL TERMS AND CONDITIONS
1)
VENDOR OBLIGATIONS.
(a)
Vendor Performance of Work.
Vendor agrees to provide services described in a Statement of Work
(such services hereinafter referred to as “Work”) under the terms and conditions of, and in conformance with,
this Agreement and any applicable Statements of Work (“SOW”). The precise scope of the Work, including
specifications and time requirements, will be specified in applicable SOW(s). Microsoft and Vendor, or any of
their respective Affiliates, can enter into SOWs, provided that Vendor’s Affiliates may not enter into a SOW
without Microsoft’s prior authorization. An “Affiliate” is any legal entity that owns, is owned by, or is under
common ownership with Vendor or Microsoft. Ownership means more than 50% ownership. Vendor is not
obligated to provide any Work and Microsoft is not obligated to pay for any Work until a SOW has been fully
executed by both parties. This Agreement does not obligate either party or its Affiliates to enter into any
SOW(s).
(b)
Revisions to Work.
Microsoft reserves the right, from time to time during the term of this Agreement,
to expand, supplement, modify or reduce the scope of the Work under any SOW (a “Change”) upon written
notice to Vendor and execution by both parties of documentation specifying such Change. In the event
Microsoft requests a Change, the Parties will use reasonable efforts to agree in writing on necessary adjustments
(if any) to the other terms of the applicable SOW necessary to accommodate the requested Change. Vendor
agrees that it will cooperate in good faith with Microsoft in performing the Work as reasonably required by
Microsoft, including any Changes requested by Microsoft. Notwithstanding the foregoing, Vendor shall not be
obligated to work on a Change that results in a net expansion of the Work until the Parties have agreed in
writing on such Change.
(c)
Reports.
Vendor shall comply with all applicable time requirements in providing Microsoft with the
reports specified in an applicable SOW (each a “Report”), and all other information, as mutually agreed by both
parties, as requested by Microsoft from time to time with respect to all Work.
(d)
Performance Reviews.
Upon Microsoft’s request or as specified in an applicable SOW, Vendor will
meet with Microsoft to review Vendor’s performance and any issues related to Vendor’s compliance with the
performance standards described in an applicable SOW.
(e)
Use of Microsoft Facilities and/or Equipment.
(i)
Microsoft Equipment.
Vendor agrees that it shall not use any Microsoft facilities and/or
equipment (including any equipment owned, leased or rented by Vendor for performing its obligations
under this Agreement) to perform services for any person or entity other than Microsoft without
Microsoft’s prior written consent. In the event Microsoft provides Vendor with equipment for use in
performing the Work, Vendor agrees to assume the risk of loss for all such equipment while in its care,
custody or control. Vendor shall take all reasonable precautions to protect the equipment against loss,
damage, theft or disappearance while in its care, custody or control. In addition, Vendor shall take no
actions which affect Microsoft’s title or interest in such equipment.
(ii)
Security and Compatibility.
Vendor shall comply with all Microsoft physical and information
security rules and requirements as may be modified from time to time at Microsoft’s sole discretion.
Vendor shall ensure that its systems remain compatible with Microsoft’s systems as necessary to perform
its obligations under this Agreement at Vendor’s sole expense.
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(f)
Vendor Agreement to Remove or Replace Employees Working on the Microsoft Account.
Vendor
agrees to promptly remove or replace any Vendor employee or Subcontractor (as defined in Section 3,
Subcontracting of Work) at Microsoft’s request for any reasonable business reason.
(g)
Financial Information.
Within ten (10) calendar days after Vendor learns that it has become or will
become insolvent, Vendor shall submit financial statements to Microsoft in sufficient detail to allow Microsoft
to determine whether Vendor shall be capable of continuing to perform its obligations hereunder.
2)
FEES AND PAYMENT TERMS.
(a)
Rates.
Microsoft agrees to pay Vendor for the Work in accordance with the fee schedule as
specifically stated in applicable SOW(s) (“Fees”). ****
(b)
Payment Terms.
Upon receipt of a correct and undisputed invoice, Microsoft shall, at its option, pay
the invoice net **** on the invoiced amount or net ****. Invoices submitted more than **** after completion of
the related work shall be paid at Microsoft’s sole discretion.
(c)
MS Invoice.
Vendor shall invoice Microsoft for all amounts due under this Agreement via the MS
Invoice online tool, or other agreed upon tool or process, in accordance with the then-current requirements set
forth at http://invoice.microsoft.com. Invoices shall not bear an invoice date earlier than the date on which
Vendor shall be entitled to be paid under the applicable SOW, or if not specified in the applicable SOW, ****.
(d)
Payment Method.
Payments by Microsoft shall be made according to Microsoft’s then-current
payment policies, which may include payment via ACH electronic payment to Vendor’s financial institution
pursuant to instructions supplied to Microsoft by Vendor in Microsoft’s ACH Electronic Payment form. In
addition, ****.
(e)
Disputed Amounts.
Microsoft may dispute any payable amount by notice to Vendor in writing within
**** days of the date on Vendor’s invoice, specifying the reason for the dispute and the charges disputed
(“Disputed Amounts”). Payment of an invoice without asserting a dispute is not a waiver of any claim or right.
Failure by Microsoft to dispute any invoiced amount within the periods set forth above shall not be deemed a
waiver of any claims that were unknown to Microsoft at the time.
3)
SUBCONTRACTING OF WORK.
Vendor may subcontract all or any portion of the Work to a third party (“Subcontractor”) upon notice to
Microsoft, except that Microsoft hereby consents to subcontracting with any entity that is a participant in good
standing in the MSVP. With respect to use of a Subcontractor, Vendor shall comply with Exhibit D and the
following conditions:
(a) Vendor guarantees Subcontractor’s fulfillment of applicable Vendor obligations.
(b) Vendor indemnifies Microsoft for all damages and costs of any kind, to the extent set forth in
Section 7 (General Indemnification), incurred by Microsoft **** and caused by Subcontractor’s acts or
omissions.
(c) Vendor makes all payments to Subcontractor. Vendor shall indemnify Microsoft for all damages and
costs of any kind, without limitation, incurred by Microsoft and caused by Vendor’s failure to pay a
Subcontractor.
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(d) Vendor shall not change Work Fees set forth in a SOW because of Vendor’s use of a Subcontractor.
(e) Use commercially reasonable efforts to ensure that, of the total amount paid by Vendor to non-
Affiliate Subcontractors operating in the United States to provide Products and/or Services under each SOW,
Vendor shall spend at least ***** with Minority Owned and Operated Businesses and at least ***** with
Women Owned and Operated Businesses. For purposes of this subsection: “Minority-Owned and Operated
Businesses” means businesses which are at least fifty-one percent (51%) owned by a Minority Person or Persons
or, in the case of any publicly owned business, at least fifty-one percent (51%) of the stock of which is owned
by a Minority Person or Persons, and whose management and daily business operations are controlled by one or
more of the same Minority Person or Persons having ownership interest. “Minority Person or Persons” means
one or more individuals who is/are USA citizens residing in the United States and (a) African-American/Black,
(b) Hispanic, (c) Asian-American/Pacific Islander (including native Hawaiians), (d) Asian Indian, and/or
(e) Native American/American Indian (enrolled in a federally recognized tribe). “Women-Owned and Operated
Businesses” means businesses which are at least fifty-one percent (51%) owned by one or more women residing
in the United States, or, in the case of any publicly owned business, at least fifty-one percent (51%) of the stock
of which is owned by one or more women residing in the United States, and whose management and daily
business operations are controlled by one or more of the same women having ownership interest.
4)
CONFIDENTIALITY.
(a)
General.
The terms of the Microsoft Non-Disclosure Agreement attached hereto as Exhibit B (the
“NDA”) shall govern all disclosures of Confidential Information (as such term is defined in the NDA) between
the parties. The existence of and terms and conditions of this Agreement and any Microsoft Information shall be
considered Confidential Information under the NDA. Microsoft Information shall mean all information provided
by Microsoft to Vendor in accordance with the terms of this Agreement and any information obtained or created
by Vendor in providing the Work, including, without limitation any information found in any Report provided
by Vendor to Microsoft, any correspondence between Microsoft and Vendor, including without limitation e-
mail transmissions, and any Microsoft customer lists, and updates, identification information (including, without
limitation, all customer information and personal information of any variety acquired by Vendor pursuant to this
Agreement or in connection with the performance of the Work and regardless of the source; transactional, sales
and activity information; and customer profile information (all of the foregoing collectively “Customer
Information”)). However, Microsoft will have the right to compile and use statistical analyses and reports
utilizing aggregated data derived from Vendor information and data and other sources, for Microsoft’s internal
business purposes.
(b)
Privacy and Data Protection.
For the purposes of this Section, “Personal Information” means any
information provided by Microsoft or collected by Vendor in connection with this Agreement (i) that identifies
or can be used to identify, contact, or locate the person to whom such information pertains, or (ii) from which
identification or contact information of an individual person can be derived. Personal Information includes, but
is not limited to: name, address, phone number, fax number, email address, social security number or other
government-issued identifier, and credit card information. Additionally, to the extent any other information
(such as, but not necessarily limited to, a personal profile, unique identifier, biometric information, and/or IP
address) is associated or combined with Personal Information, then such information also will be considered
Personal Information.
Any Personal Information collected or accessed by Vendor in the performance of the Work in accordance with
this Agreement shall be limited to that which is strictly necessary to perform such Work or to fulfill any legal
requirements. If the Work involves the collection of Personal Information directly from individuals, such as
through a webpage, Vendor will provide a clear and conspicuous notice regarding the uses of the
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Personal Information. Such notice will comply with all relevant guidelines contained at
http://members.microsoft.com/vendorguide or as otherwise provided by Microsoft.
Vendor shall use such Personal Information only as necessary to perform the Work in accordance with this
Agreement and not for any other purpose whatsoever. Vendor shall maintain such Personal Information in strict
confidence in accordance with the provisions of Section 4(a) hereof. Vendor will not share any Personal
Information that is collected or possessed by Vendor with any third parties for any reason except as necessary to
carry out the Work, and only under terms and conditions of Section 3 (Subcontracting of Work). If Vendor is
served with a court order compelling disclosure of any Personal Information or with notice of proceedings for
such an order, Vendor will oppose the order, will notify Microsoft of such order or notice, and will provide
Microsoft the opportunity to intervene before Vendor files any response to the order.
Vendor will take reasonable steps to protect Personal Information in Vendor’s possession from unauthorized
use, access, disclosure, alteration or destruction. Security measures shall include access controls, encryption or
other means, where appropriate. Vendor must immediately notify Microsoft of any known security breach that
may result in the unauthorized use, access, disclosure, alteration or destruction of Personal Information. Vendor
agrees to conduct an audit on at least an annual basis to evaluate the security of Personal Information in
Vendor’s possession and to verify that the terms of this Agreement with respect to Personal Information are
being followed. The results of such audit shall be made available to Microsoft upon request.
Upon request from Microsoft, Vendor shall provide Microsoft with any or all Personal Information in Vendor’s
possession. Upon termination or expiration of this Agreement, Vendor shall within ten (10) calendar days
thereafter, at Microsoft’s sole discretion either (i) provide Microsoft with all documents and materials (including
any and all copies) containing Personal Information, together with all other materials and property of Microsoft,
which are in its possession or under its control or (ii) destroy all such specified documents and materials
(including any and all copies in any and all formats) and provide Microsoft with a certificate of destruction
signed by an officer of Vendor.
(c)
Credit Card Information Compliance.
Vendor, its affiliates and their respective subcontractors, as
applicable, shall at all times comply, at its own cost, with the PCI Data Security Standards (PCI DSS)
requirements for any work involving cardholder data as prescribed by the PCI Security Standards Council as the
same may be amended from time to time.
Copies of current PCI DSS documentation are available on the PCI Security Standards Council website
at:
https://www.pcisecuritystandards.org/
5)
OWNERSHIP AND LICENSE.
(a)
Commissioned work.
The Work has been specially ordered and commissioned by Microsoft, and
Vendor agrees that the Work is a “work made for hire” for copyright purposes, all copyrights and any other
intellectual property rights in the Work shall be owned by Microsoft. As such, Vendor will promptly disclose to
Microsoft, in writing, any and all inventions, works of authorship, improvements, developments, or discoveries
conceived, authored, made or reduced to practice by Vendor or its Affiliate, either solely or in collaboration
with others, including personnel of Vendor and its Affiliates (if any), in the course of and in connection with
performing under a SOW, or otherwise based upon confidential information of Microsoft or Microsoft
Customers
(b)
Assignment.
Vendor hereby irrevocably assigns without reservation to Microsoft and its successors all
rights, title and interest (now known or hereafter created or recognized) in and to the Work, including, without
limitation, the following:
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(i) any copyrights, moral rights or any other proprietary rights (whether or not registerable and
including any application for the registration of any such rights) that Vendor may possess or acquire in the
Work throughout the world, and any renewals or extensions of such rights, regardless of whether or not
legal protection for the Work is sought;
(ii) all rights in and to any inventions, ideas, designs, concepts, techniques, discoveries, or
improvements, whether or not patentable, embodied in the Work or developed in the course of Vendor’s
creation of the Work, including but not limited to all trade secrets, utility and design patent rights and
equivalent rights in and to such inventions and designs throughout the world, and any renewals or
extensions of such rights, regardless of whether or not legal protection for the Work is sought; and
(iii) any documents, magnetically or optically encoded media, or other materials created by Vendor
under a SOW.
To the extent moral rights in the Work cannot be assigned, Vendor agrees to assert moral rights or procure the
assertion (as the case may be) of such rights by the authors of the Work at Microsoft’s sole direction and
discretion. Vendor waives any moral rights of Vendor in and to the Work and agrees to use reasonable efforts to
obtain from each person that contributes to the Work an irrevocable, perpetual and worldwide waiver in writing
stated to be in favor of Microsoft and its successors, assigns and licensees of all present and future moral rights
he/she may have in or to the Work. The waiver referred to in the preceding sentence shall be in a form
acceptable to Microsoft and shall be delivered by Vendor to Microsoft upon request.
Vendor grants (except with respect to third party materials) a non-exclusive, perpetual (without regard to any
termination), irrevocable, worldwide, fully paid-up, assignable and transferable license under any current and
future patents owned or licensable by Vendor, including any renewals or extensions thereof, to the extent
necessary for Microsoft or its third party licensees to make, use, modify, license, sell, sublicense, distribute, or
market the Work, or otherwise realize the benefits contemplated hereunder, including the right to further
sublicense such rights to third parties.
(c)
Pre-Existing Materials.
Notwithstanding anything to the contrary in this Agreement, Vendor shall
retain full title and ownership rights in and to any computer program, code, techniques, processes (including
utility and design rights), copyrights, trade secrets, moral rights and any materials developed by or for Vendor,
including any developments and derivative works thereto made independently of this Agreement or SOW (“Pre-
Existing Materials”) which may be used or provided in the performance of the Work hereunder as set forth in
this Agreement or any SOW. Vendor hereby grants Microsoft a non-exclusive, perpetual, world-wide, fully
paid-up license, under Vendor’s applicable current and future intellectual property and proprietary rights: ****.
All other rights in the Pre-Existing Materials are reserved by Vendor.
(d)
Databases.
If Vendor creates and uses a database as part of the Work (“Database”), Microsoft will
own the data entered into that Database. Vendor will own any Pre-Existing Materials subsisting in the Database.
****
(e)
Third Party Materials.
Vendor shall not use any third party software or other materials to perform
Work without Microsoft’s prior express written consent. Vendor shall provide Microsoft with the license terms
or other agreements that govern the use of such Materials to the extent available or applicable that Vendor wants
to use, and shall abide by them when performing Work.
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(f)
Open Source License Restrictions.
Vendor will ensure that no Deliverables, and no Vendor IP or
other IP licensed to Microsoft are governed, in whole or in part, by any license requiring, as a condition of use,
modification and/or distribution of software subject to the license, that the software and/or software combined
and/or distributed with the software be:
(i) Disclosed or distributed in source code form;
(ii) Licensed for the purpose of making derivative works; or
(iii) Redistributable at no charge
For the purpose of clarity, nothing in this section prohibits Vendor from using Open Source licensed materials in
connection with providing services or Work under this Agreement.
(g)
Further Assistance.
At Microsoft’s expense, Vendor shall execute and deliver such instruments and
take such other action as may be requested by Microsoft to perfect or protect Microsoft’s rights in the Work and
to carry out the assignments set forth in this Section 5.
(h)
License of Microsoft Materials.
Except as otherwise provided in an Addendum to this Agreement or
an applicable SOW, during the term of the applicable SOW, Microsoft grants to Vendor a temporary, limited,
non-exclusive license to use, reproduce and modify its computer programs, code or materials in the form
provided to Vendor during the term of an applicable SOW, provided such use, reproduction and modification is
solely for purposes of performing of the Work.
6)
WARRANTIES AND REPRESENTATIONS.
(a)
By Vendor.
Vendor represents and warrants to Microsoft as follows:
(i) Vendor has full right and power to enter into and perform according to the terms of this
Agreement, and that such performance shall not violate any agreement or other obligation between
Vendor and any third party.
(ii) The Work provided, including any portion performed by any Subcontractor, shall strictly
comply with the terms and conditions of this Agreement.
(iii) Vendor shall, while on Microsoft property or while performing the Work, take all required
actions and comply with, and cause its employees, Subcontractors and agents to comply with, all
applicable laws and regulations applicable to its performance hereunder, including without limitation, the
employment, workman’s compensation, immigration, tax and export control laws of any jurisdiction in
which Work is performed.
(iv) The Work shall not infringe or violate any patent, copyright, trademark, trade secret or other
proprietary right of a third party and shall either be originally created by Vendor or Vendor shall obtain all
necessary rights to the Work to transfer ownership to Microsoft as required by Section 5 (Ownership and
License).
(v) Vendor represents that any software in its possession, including any Microsoft software, is
properly licensed for use.
(b)
By Microsoft.
Microsoft hereby represents and warrants to Vendor that it has the full right to enter
into and perform according to the terms of this Agreement.
7)
GENERAL INDEMNIFICATION.
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(a) Vendor agrees to defend, indemnify and hold Microsoft, and its subsidiaries, affiliates, directors,
officers, employees and agents (“Indemnified Parties”) harmless from and against all claims, damages, losses,
suits, actions, demands, proceedings, expenses, and liabilities of any kind, (including reasonable attorneys’ fees
incurred and/or those necessary to successfully establish the right to indemnification) threatened, asserted or
filed (collectively, “Claims”) against any Microsoft Indemnified Party, to the extent that in providing the Work
such Claims arise out of or relate to (i) bodily injury or death to any person, (ii) loss, disappearance, or damage
to property, (iii) any breach or alleged breach of any warranty or representation made by Vendor in this
Agreement, (iv) the infringement or violation of any patent, copyright, trademark, trade secret or other
proprietary right of a third party and/or (v) any act or omission to act of Vendor, its Subcontractors, or agents,
except to the comparative extent that such Claims result from the negligent or willful acts of Microsoft.
(b) If any action is brought against any Microsoft Indemnified Party in which indemnity is sought from
Vendor, Microsoft shall (i) provide Vendor reasonably prompt notice of any such Claim; (ii) permit Vendor,
through counsel mutually acceptable to Microsoft and Vendor, to answer and defend such Claim; and
(iii) provide Vendor information and reasonable assistance at Vendor’s expense to help Vendor to defend such
Claim.
(c) Microsoft shall have the right to employ separate counsel and participate in the defense of any Claim
at its own expense. Vendor shall reimburse Microsoft for any payments made or losses suffered based upon the
judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of Claims.
Vendor shall not settle any Claim on Microsoft’s behalf without first obtaining Microsoft’s written permission.
(d) Should the Work (or any portion thereof) be held to constitute an infringement, Vendor shall notify
Microsoft and immediately, at Vendor’s expense: (i) procure for Microsoft the right to continue use, sale, and/or
marketing of the Work (or any portion thereof) or (ii) replace or modify the Work (or any portion thereof) such
that it is non-infringing, provided that the replacement or modification meets the requirements of this
Agreement to Microsoft’s satisfaction. If (i) or (ii) are not possible, in addition to any damages or expenses
reimbursed under this Section, Microsoft shall have the right to terminate this Agreement and Vendor shall pay
to Microsoft all costs associated with transitioning the Work to a new vendor.
8) LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMMISSIBLE BY LAW, NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS
OF DATA OR LOSS OF USE) INCURRED BY THAT PARTY AS A RESULT OF ANY BREACH OF THIS
AGREEMENT. THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION,
WHETHER UNDER STATUTE, UNDER EQUITY, OR IN CONTRACT OR TORT, INCLUDING
NEGLIGENCE, OR ANY OTHER FORM OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
THIS SECTION SHALL HAVE NO EFFECT UPON, AND SHALL NOT LIMIT LIABILITY FOR ANY
CLAIMS, LOSSES OR DAMAGES FOR BREACH OF SECTIONS 4 (CONFIDENTIALITY), 5
(OWNERSHIP & LICENSE), 6 (WARRANTIES & REPRESENTATIONS), 7 (GENERAL
INDEMNIFICATION), AND 13 (PUBLICITY & MICROSOFT TRADEMARKS).
9) INSURANCE.
Vendor shall comply with the additional terms regarding insurance for Work as set forth in
the Exhibit D: Additional Vendor Obligations, Article 2: Insurance Requirements.
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10) TAXES.
Microsoft is not liable for any taxes that Vendor is legally obligated to pay and which are incurred
or arise in connection with the sale of Products and Services. All taxes (including but not limited to net income
or gross receipts taxes, franchise taxes, and property taxes) shall be Vendor’s financial responsibility. Microsoft
shall pay Vendor any sales or use taxes owed by Microsoft solely as a result of entering into this Agreement or a
subsequent SOW and which are required to be collected from Microsoft by Vendor under applicable law.
Microsoft may provide Vendor with a valid exemption certificate, and Vendor shall not collect taxes covered by
the certificate. Vendor shall indemnify, defend and hold Microsoft harmless from any taxes (including sales or
use taxes paid by Microsoft) or claims, causes of action, costs (including without limitation, reasonable
attorneys’ fees) and any other liabilities of any nature whatsoever related to taxes. If taxes are required to be
withheld on any amount to be paid by Microsoft to Vendor, Microsoft will deduct them from the amount owed
and pay them to the appropriate taxing authority. At Vendor’s written request and expense, Microsoft will use
reasonable efforts to assist Vendor in obtaining tax certificates or other documentation evidencing such
payment, but the responsibility for documentation remains with Vendor. For services delivered outside the
United Sates, Microsoft shall specify tax rates for Microsoft products and/or services sold by Vendor acting on
Microsoft’s behalf in connection with Vendor providing services in each applicable country outside the United
States. Vendor will collect tax on behalf of Microsoft, at Microsoft’s written request, and remit collected tax to
Microsoft. Microsoft is responsible for remitting the tax to the appropriate taxing authorities. This Section shall
govern the treatment of all taxes arising in connection with this Agreement notwithstanding any other section of
this Agreement.
11)
TERM OF AGREEMENT; DEFAULT.
(a)
Duration.
Subject to Section 11(b) hereof, the period of time during which this Agreement shall be in
effect (“Term”) commences on the Effective Date and shall continue for a period of three (3) years thereafter.
(b)
Early Termination and Default.
The Term is subject to early termination of the Agreement in
accordance with the following:
(i) Either Party shall have the right to terminate this Agreement immediately upon a Default under
Section 11(b)(ii)(A). Vendor may terminate this Agreement upon a Default under Section 11(b)(ii)(B), if
the default has not been cured within five (5) business days after the non-defaulting Party provides notice
to the defaulting Party describing the Default(s) in reasonable detail. Either Party may terminate this
Agreement or any SOW upon a Default by either Party in accordance with Section 11(b)(ii)(C).
(ii) Each of the following is a Default:
(A) Vendor’s or Microsoft’s failure to comply with a provision of Sections 4(a), 4(b) or 15(e);
(B) Microsoft’s failure to pay the Fees (excluding Disputed Amounts) as required under
Section 2 (Fees and Payment Terms) of this Agreement; and
(C) The failure of either Party to perform any of the Party’s obligations contained in this
Agreement, which failure has not been cured within thirty (30) calendar days after the non-
defaulting Party provides notice to the defaulting Party describing the Default(s) in reasonable
detail. This right of cure shall not apply to Defaults described in Sections 11(b)(ii)(A) or (B) above.
(iii) Microsoft may elect to terminate this Agreement during the Term without cause or without the
occurrence of a Default, which termination shall be effective **** days after such notice. *****
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(c)
Effect of Termination and Survival.
Notwithstanding expiration or termination of this Agreement,
Microsoft shall pay to Vendor all Fees earned prior to expiration or termination ****. In addition, within ****
days from the date of expiration or termination, each Vendor shall:
(i) return all data derived from Work performed under this Agreement, to Microsoft; and
(ii) at Microsoft’s sole discretion either (x) provide Microsoft with all documents and materials
(including any and all copies) containing Customer Information, together with all other materials and
property of Microsoft, which are in its possession or under its control or (y) destroy all such specified
documents and materials (including any and all copies in any and all formats) and provide Microsoft with
a certificate of destruction signed by an officer of Vendor; and
(iii) at Microsoft’s sole discretion either (x) return any Microsoft Confidential Information or
property or (y) destroy all such specified documents and materials (including any and all copies in any and
all formats) and provide Microsoft with a certificate of destruction signed by an officer of Vendor.
The terms and conditions of Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15(b) will survive any termination or
expiration of this Agreement.
(d)
Transition of Work.
In the event of termination, Vendor will make its staff available to assist with the
transition of the Work to the successor vendor. Vendor will be compensated based on mutually agreeable rates
for these transition services not to exceed the pricing described in the applicable SOW for comparable services
or, if the transition services are not comparable to services described in the applicable SOW, as mutually
agreeable by the parties.
12)
RECORDS AND AUDIT.
(a) During the term of this Agreement and for **** years thereafter, Vendor agrees to keep all usual and
proper records and books of account and all usual and proper entries relating to its costs and expenses, and
quality and performance reports in providing the Work. Also, during the above referenced period, Microsoft
shall have the right to cause an audit and/or inspection to be made of the applicable Vendor records and facilities
in order to verify statements issued by Vendor and Vendor’s compliance with the terms of this Agreement. Any
such audit shall be conducted by Microsoft corporate internal auditors or an independent certified public
accountant selected by Microsoft. Except as specified herein, Microsoft shall be responsible for all costs and
attorney fees related to such audits. Vendor agrees to provide Microsoft’s designated audit or inspection team
access to the relevant Vendor records and facilities. If an audit reveals that Vendor has overcharged Microsoft
by **** or more of the amounts due for any audited period of time, Vendor agrees, in addition to recalculating
and making immediate payment to Microsoft of all overpayments, ****, based on the actual and true amounts
due and owing, to pay Microsoft all reasonable costs and expenses incurred by Microsoft in conducting such
audit, including, but not limited to, any amounts paid to any auditor or attorney.
(b) Licensing. Vendor must keep records relating to the licensing of the Microsoft software in its
possession and use. Microsoft has the right to conduct an audit of Vendor or any Vendor Affiliate performing
services under this Agreement to verify Vendor or its Affiliate’s licensing of Microsoft software using an
independent accountant from a nationally recognized public accounting firm, which will be subject to a
confidentiality obligation. Any such audit will take place upon not fewer than **** calendar days’ notice,
during normal business hours and in a manner that does not interfere unreasonably with Vendor’s operations. As
an alternative, Microsoft may require Vendor and/or its Affiliates(s) performing services under this Agreement
to accurately complete a Microsoft self-audit questionnaire. If verification
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or self-audit reveals either Vendor’s or its Affiliates’ unlicensed use of Microsoft software, Vendor and/or its
Affiliate(s) must promptly obtain sufficient licenses for all Microsoft software usage disclosed. If material
unlicensed use is identified (defined as a license shortage of **** or more), Vendor and/or its Affiliate (as
applicable) must reimburse Microsoft for the reasonable costs incurred in verification and acquire the necessary
additional licenses within **** days. If Microsoft undertakes such verification and does not find material
unlicensed use of its software, Microsoft will not undertake another verification of Vendor for at least one year.
Microsoft and its auditors will use the information obtained in compliance verification only to enforce
Microsoft’s rights and to determine whether Vendor and/or any Vendor Affiliate providing services under this
Agreement is in compliance with the terms of the applicable software license agreement and the terms of this
Agreement. By invoking the rights and procedures described above, Microsoft does not waive its rights to
enforce the Agreement (including any license agreement or statement of work incorporating these terms) or to
protect Microsoft’s intellectual property by any other means permitted by law.
(c) Compliance with Sarbanes-Oxley Act. Vendor shall maintain, at Microsoft’s cost, any documentation
required and specified by Microsoft in connection with the United States Sarbanes-Oxley Act of 2002.
13) PUBLICITY AND MICROSOFT TRADEMARKS.
**** Any permitted use of Microsoft trademarks
under this Agreement must adhere to Microsoft’s then-current brand usage guidelines.
14) FORCE MAJEURE.
If Vendor is or expects to be unable to perform Work as required by a SOW due to a
condition or cause beyond Vendor’s reasonable control (such as natural disasters, riot, war, terrorist attack, or
acts of a government authority) for **** or more, Vendor shall immediately notify Microsoft of the situation,
via email, telephone, facsimile transmission or other means to the Microsoft Vendor Accounting Manager
identified on the cover page of the Agreement and/or to the Microsoft business group contact for the SOW
15)
OTHER PROVISIONS.
(a)
Relationship of Parties; Non-exclusivity.
This Agreement is only intended to create an independent
contractor relationship between Vendor and Microsoft. Under no circumstance shall one Party’s employees be
construed to be employees of the other Party. Vendor further agrees to be responsible for all of Vendor’s federal
and state taxes, withholding, social security, insurance and other benefits. Upon request, Vendor shall provide
Microsoft with satisfactory proof of independent contractor status, if applicable. The parties agree that nothing
contained in this Agreement or any SOW shall be construed as creating an exclusive relationship between the
parties.
(b)
Governing Law; Attorneys’ Fees.
This Agreement shall be governed by the laws of the State of ****
and Vendor consents to jurisdiction and venue in the state and federal courts sitting in ****. Vendor waives all
defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either Party in the
manner authorized to enforce by applicable law or court rule. If either Microsoft or Vendor employs attorneys to
enforce any rights arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover its
costs, including reasonable attorneys’ fees.
(c)
No Inadvertent Waiver.
Failure of any Party to exercise its rights under this Agreement shall not be
construed as a waiver thereof and shall not prevent said Party from thereafter enforcing strict compliance with
any of the terms thereof.
(d)
Binding Nature.
This Agreement shall inure to and bind all successors, assigns, receivers and trustees
of the respective parties hereto.
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(e)
No Assignment.
Each Party acknowledges and covenants that it shall not sell, assign, transfer, pledge
or encumber any of its rights or delegate any of its duties or obligations under this Agreement (by actual
assignment or by operation of law, including without limitation through a merger, acquisition, consolidation,
exchange of shares, or sale or other disposition of assets, including disposition on dissolution), without the prior
written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding anything
to the contrary herein, Microsoft may assign this Agreement to any of its subsidiaries.
(f)
Severability.
If any court or governmental authority should determine that any clause or provision
contained herein are improper, unenforceable or violates any rule, regulation, policy or statute, then that
provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and to the
extent such provision or provisions shall be reformed without further action by the parties hereto and only to the
extent necessary to make such provision or provisions valid and enforceable when applied to such particular
facts and circumstances and the remainder of this Agreement shall continue in full force and effect.
(g)
Amendment.
This Agreement may be amended only in written agreement signed by all parties, except
that Microsoft reserves the right to unilaterally modify Exhibit D: Additional Vendor Obligations and its
physical and information security policies as it deems necessary from time to time and Vendor agrees to comply
with all such modifications.
(h)
Existing Statements of Work.
As of the Effective Date of this Agreement, any outstanding services
or SOWs provided under an expired or pre-existing Vendor Services Agreement, executed between the parties,
shall be governed by the terms and conditions of this Agreement and shall supersede and replace any such
expired or pre-existing agreements.
(i)
Microsoft Corporation and Affiliates – Third Party Beneficiaries.
Vendor acknowledges and
agrees that the benefit of certain of the Clauses of this Agreement are expressed to be not only for the benefit of
Microsoft but also for the benefit of Microsoft Corporation, Affiliates of Microsoft Corporation and/or licensors
of Microsoft Corporation. Vendor acknowledges that each and any of the foregoing shall be entitled in its or
their own right to require by Vendor the due performance of each such provision as aforesaid and to this end,
that Microsoft is entering into this Agreement not only in its own right, but also as an agent and trustee for each
of Microsoft Corporation, its Affiliates and/or licensors of Microsoft Corporation, provided always that any
action to enforce the rights or privileges of such parties under or in connection with this Agreement or the
Services (other than for an injunction, temporary restraining order or other similar equitable relief required to
enforce the terms of this Agreement, or to preserve the rights of such party in accordance with applicable
statutory or equivalent limitation periods) shall be instituted and prosecuted by Microsoft on their behalf.
(j)
Compliance with Laws.
Both Parties shall comply with all federal, state, country and local laws,
order, rules, ordinances, regulations and codes, including but not limited to those related to privacy and data
16)
ADDENDUMS AND EXHIBITS.
The following addendums and exhibits, as amended from time to time, are incorporated into this Agreement by
reference:
Addendum for the Provision of Contact Center Services
Exhibit A: Statement(s) of Work
Exhibit B: Microsoft Corporation Non-Disclosure Agreement
Exhibit C: Business Continuity Management (BCM) Framework
Exhibit D: Additional Vendor Obligations
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17) ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties with respect
to the subject matter hereof and supersedes all oral understandings, representations, prior discussions and
preliminary agreements. Any representations, warranties, promise or conditions not expressly contained in this
Agreement shall not be binding upon the parties. This agreement does not constitute an offer by Microsoft and it
shall not be effective until signed by both parties.
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ADDENDUM FOR THE PROVISION OF CONTACT CENTER SERVICES
This Addendum for the Provision of Contact Center Services (“Addendum”) is made pursuant to the
Vendor Services Agreement by and between Microsoft Corporation and Rainmaker Systems, Inc. (the
“Agreement”). The terms of this Addendum are incorporated into the Agreement by this reference. Any terms
not otherwise defined herein will assume the meanings set forth in the Agreement.
1)
FACILITIES.
At all times during the Term, Vendor shall maintain and use, at its own risk, all equipment (except
telecommunications equipment described below), services and software necessary to efficiently and accurately
provide the Work at the facilities specified under any applicable SOW (“Facilities”), and shall be responsible for
all costs associated therewith. At all times during the Term, Microsoft will be responsible for the provision and
maintenance of any telecommunications equipment necessary to reroute customer calls from Microsoft to a
mutually agreed demarcation point as defined in the applicable SOW, including all costs associated therewith.
2)
BUSINESS CONTINUITY MANAGEMENT.
Vendor agrees to create, implement and maintain a documented Business Continuity Management (BCM)
Framework to provide a comprehensive and structured response capability that caters for planned and unplanned
interruption events. In the circumstances that Vendor experiences a disruption (interruption event) in Vendor’s
ability to provide the Work, or Vendor’s Facilities are incapacitated for any reason, Vendor shall immediately
notify Microsoft and implement Vendor’s appropriate Business Continuity Plan (BCP) for the applicable
Statement of Work (SOW).
Microsoft expects each site to be governed by the overall Business Continuity Management Framework, as
outlined in the annexed Exhibit C
Microsoft reserves the right to suspend this Agreement, at its discretion, until performance of the Work can be
resumed. Microsoft may redirect incidents during any time in which Vendor is unable to perform the Work due
to a disruption, and deduct from applicable Fees, any costs or expenses that Microsoft incurs as a result of
redirecting incidents.
3)
TRAINING.
(a)
General.
Vendor is responsible for ensuring that all Vendor agents engaged in performing the Work
(“Support Professionals”) successfully complete all training programs specified by Microsoft in any SOW. At
all times during the Term of this Agreement, Vendor shall ensure that each Support Professional is capable of
responding to customer calls regarding each Microsoft product offering (“Product”) for which the Vendor is
currently providing Work. Vendor Support Professionals must take and successfully pass both pre- and post
training tests provided to Vendor by Microsoft to measure training effectiveness. Vendor shall be responsible
for administering the tests and reporting test results to Microsoft.
(b)
Trainers.
Vendor will designate trainers for each Product supported to receive Microsoft provided
train-the-trainer instruction. Trainers shall participate in all train-the-trainer events that Microsoft, in its sole
discretion, deems necessary. The required number of Vendor designated trainers shall be set forth in applicable
SOW(s).
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(c)
Cost of Training.
Microsoft will not be charged for any of the Work provided by any new hire until
the individual has completed the required number of hours of Vendor provided training as specified in the
applicable SOW and has demonstrated the ability to provide the Work as measured by the knowledge and
performance tests, as specified in the applicable SOW. Microsoft may conduct random quality checks on any
training materials and any courses developed by Vendor. Except as otherwise agreed upon by the Parties in
writing or as set forth in any SOW, all training required by this Agreement shall be at the Vendor’s sole cost and
expense, including without limitation all labor, travel, and out-of-pocket costs.
(d)
Training Materials.
Where Microsoft provides training materials to Vendor, all training shall be
conducted using such training materials and Vendor shall not modify, supplement or replace the training
materials with Vendor or third party developed materials without Microsoft’s prior written consent. Microsoft
hereby grants Vendor a world-wide, non-exclusive, personal, non-transferable, non-assignable, limited, royalty-
free license during the term of this Agreement to reproduce any training materials provided by Microsoft to
Vendor only for Vendor’s internal use for the purpose of providing the training required under this Agreement.
Training materials provided by Microsoft to Vendor are Microsoft Confidential Information.
4)
SECURITY OBLIGATIONS
(a)
Physical Security.
(i)
Isolated Space.
On a project by project basis, as designated by Microsoft, and unless otherwise
agreed between the Parties, the computers used to provide the Work must be located in one or more non-
public rooms with access through lockable doors only and the doors should be locked at all times.
(ii)
Controlled Access.
On a project by project basis, as designated by Microsoft, access to the
room containing the computers used to provide the Work shall be granted only to those persons
performing the Work or supporting the performance of the Work under this Agreement. Access to the
Facilities must be controlled with individual-specific (e.g. Cardkey) or combination (e.g. Cipher) locking
mechanisms.
(b)
Computer Security.
Password Protected Screensavers: All workstations connected to the LAN and
used for the purpose of providing the Work and which gives visibility to confidential Microsoft customer
records (the “Support LAN”) must have a password protected screensaver set to enable after five (5) minutes of
idle time. All users must log out when they leave a machine for the day or for an extended period. Passwords
must be changed at a maximum interval of ninety (90) calendar days and passwords cannot be reused.
Passwords must be at least seven characters long, not contain any part of the individual’s name or email name,
and contain characters from at least three of the following four classes: (i) English upper case letters, (ii) English
lower case letters, (iii) westernized Arabic numerals, and (iv) non-alphanumeric special characters.
(c)
Network Security.
On a project by project basis, as designated by Microsoft, Vendor will isolate
(either electronically or physically) the Support LAN from other LANs maintained by the Vendor. Vendor shall
restrict use of the Support LAN solely to Vendor employees providing Work under this Agreement. Vendor
agrees to notify Microsoft promptly upon discovery of any breach of security in the Support LAN, and Vendor
shall take immediate steps to remedy any such breach.
(d)
Miscellaneous.
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(i) Vendor is responsible for security, including physical security, the application of appropriate
service packs and hot fixes, security personnel, security hardware, security software, and costs related to
the installation and construction of security-related systems.
(ii) Vendor shall not allow the disclosure of Microsoft Confidential Information or data to
unauthorized individuals.
(iii) Vendor shall not allow unauthorized modification or destruction of Microsoft Confidential
Information or data.
(iv) Vendors shall not allow unauthorized modification of system components, including, without
limitation, websites or server software.
(v) Vendor shall monitor and maintain system logs and shall make said logs available to Microsoft
upon request.
5)
ONSITE INSPECTION
Microsoft may make onsite inspections of the Facilities at its discretion with twenty four (24) hours’ notice for
the purpose of confirming compliance with the terms of this Agreement. Vendor will provide at no charge
reasonable office space at the Facilities in connection with any such inspection.
6)
LICENSE GRANTS
(a)
Knowledge Base and Notes
(i) Microsoft grants to Vendor for the sole purpose of providing the Work a world-wide non-
exclusive, personal, non-transferable, non-assignable, limited, royalty-free right and license during the
Term to (A) reproduce and use internally at the Facilities, data from the Microsoft designated product
support service database (“Knowledge Base”), application notes for the Product(s) (“Notes”), and
(B) reproduce, use and distribute articles from the Knowledge Base, Notes and Training Materials in
accordance with the notices set forth on such documents. Microsoft reserves all other rights not expressly
granted herein.
(ii) Vendor shall not remove any disclaimers, copyright notices and trademarks from any copies of
data from the Knowledge Base or Notes or any data contained therein.
(iii) Vendor shall only use the data from the Knowledge Base and the Notes in conjunction with
Microsoft Tools (as defined in Section 6(b) below).
(iv) Upon the expiration or termination of this Agreement, Vendor’s license rights with respect to
the Knowledge Base and Notes shall automatically terminate, and Vendor shall within ten (10) calendar
days thereafter either (i) at Vendor’s expense return all copies of the Knowledge Base and Notes
(including all related documentation) licensed to Vendor pursuant to this Agreement in its possession to
Microsoft, or provide written certification to Microsoft signed by an authorized representative of Vendor
that Vendor has destroyed all copies of the Knowledge Base and Notes (including all related
documentation) in its possession or control. Nothing in this Section 6 is intended to
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prevent Vendor from using publicly available Knowledge Base information following termination or
expiration of this Agreement.
(b)
Products and Microsoft Tools.
Microsoft will provide to the Vendor the Microsoft product offerings
for which the Work will be performed (“Products”) and certain business tools (“Microsoft Tools”) via download
over a secured server and/or in tangible media. Microsoft will provide these in such quantities as may be
required by Vendor from time to time to assist Vendor in providing the Work. Effective upon the delivery of the
Products to Vendor, Microsoft grants to Vendor a world-wide non-exclusive, personal, non-transferable, non-
assignable, limited, royalty-free license solely for the purpose of providing the Work to (i) reproduce and install
the Products on computers physically located at the Facilities and (ii) use the Products internally pursuant to the
terms of the End User License Agreement (each a “EULA”) accompanying each of the Products at the Facility.
Microsoft reserves all other rights not expressly grants herein. The terms of the EULA are incorporated herein
by reference and Vendor acknowledges receipt of the same. In the event the terms of any EULA conflict with
any terms of this Agreement, the terms of this Agreement shall control. Upon expiration or termination of this
Agreement or any SOW, Vendor’s license to use and reproduce any Products or Microsoft Tools, shall
automatically terminate. Vendor shall have ten (10) calendar days thereafter to either (i) return all copies of the
Products or Microsoft Tools (including all related documentation) licensed to Vendor at its expense pursuant to
this Agreement in its possession to Microsoft, or (ii) provide written certification to Microsoft signed by an
authorized representative of Vendor that Vendor has destroyed all copies of the Products (including all related
documentation) licensed to Vendor pursuant to this Agreement in its possession.
(c)
Vendor Tools.
Microsoft and Vendor acknowledge and agree that Vendor is the owner of or has the
right to use software tools developed and used by Vendor, as well as patents, trade secrets and other proprietary
rights associated therewith. All Vendor Tools used to provide the Work must be approved by Microsoft in
writing. Microsoft and Vendor acknowledge that Microsoft is the owner of any Microsoft content contained in
the above referenced Vendor Tools. Vendor hereby grants to Microsoft a personal non-transferable and non-
assignable, non-exclusive worldwide license to reproduce, modify, use and create derivative works from such
Vendor Tools for internal Microsoft use during the term of this Agreement. Microsoft agrees not to distribute
such Vendor Tools to any third party without Vendor’s express consent. Vendor agrees to provide copies of all
such Vendor Tools and related documents to Microsoft for such purposes.
(d)
Use of Microsoft Name.
During the Term, Microsoft grants to Vendor a world-wide, non-exclusive,
personal, non-transferable, non-assignable, limited, royalty free license to use the Microsoft name solely in
conjunction with answering incidents and making outbound research responses to Microsoft customers to
provide Work pursuant to the terms of this Agreement. Vendor shall at no time identify itself as being an
outsource support provider for Microsoft or any Microsoft affiliates except with Microsoft’s written consent or
as may be required by law.
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EXHIBIT A: STATEMENT OF WORK:
(to be incorporated individually under separate cover)
Exhibit Page 1
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Commission. Confidential treatment has been requested with respect to the omitted portions.
EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
Non-Disclosure Agreement
This Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our”
refer to both of the parties signing below and our respective affiliates.
COMPANY AND ITS AFFILIATES or
INDIVIDUAL:
Rainmaker Systems
MICROSOFT CORPORATION
AND ITS AFFILIATES
Address: 8701 N Mopac
One Microsoft Way
Austin
TX 78759
Redmond, WA 98052-6399
USA
USA
Sign:
Print Name: Rick Cassizzi
Mary E. Snapp
Print Title: Controller
Corporate Vice President, Deputy General Counsel
Signature Date: 5.19.08
05/19/2008
1. The purpose of this agreement.
This agreement allows us to disclose confidential information to each other,
to our own affiliates and to the other’s affiliates, under the following terms. An “affiliate” is any legal entity that
one of us owns, that owns one of us or that is under common control with one of us. “Control” and “own” mean
possessing a 50% or greater Interest in an entity or the right to direct the management of the entity.
2.
Confidential information.
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.
b.
What Is not included.
The following types of information, however marked, are not confidential
Information, Information that:
•
Is, or becomes, publicly available without a breach or this agreement;
•
Was lawfully known to the receiver of the information without an obligation to keep it
confidential;
Microsoft Filing Instructions:
after both parties sign
and date this Agreement,
Your customer should retain
one original for their files and return the other to you. Then, address the second original to:
NDA, CRM 124/Records
Microsoft Corporation
1 Microsoft Way
Redmond, WA 98052-6399
IEAID: 133205
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Commission. Confidential treatment has been requested with respect to the omitted portions.
•
Is received from another source who can disclose it lawfully and without an obligation to keep it
confidential;
•
Is independently developed; or
•
Is a comment or suggestion one of us volunteers about the otter’s business, products or services.
3. Treatment of confidential information.
a.
In general.
Subject to the other terms of this agreement, each of us agrees:
•
We will not disclose the other’s confidential information to third parties; and
•
We will use and disclose the other’s confidential information only for purposes of our business
relationship with each other.
b.
Security precautions.
Each of us agrees:
•
To take reasonable steps to protect the other’s confidential information. These steps must be at
least as protective as those we take to protect our own confidential information;
•
To notify the other promptly upon discovery of any unauthorized use or disclosure of confidential
information; and
•
To cooperate with the other to help regain control of the confidential information and prevent
further unauthorized use or disclosure of it.
c.
Sharing confidential information with affiliates and representatives.
•
A “representative” is an employee, contractor, advisor or consultant of one of us or one of our
respective affiliates.
•
Each of us may disclose the other’s confidential information to our representatives (who may
then disclose that confidential information to other of our representatives) only if those
representatives have a need to know about it for purposes of our business relationship with each
other. Before doing so, each of us must:
•
ensure that affiliates and representatives are required to protect the confidential information
on terms consistent with this agreement; and
•
accept responsibility for each representative’s use of confidential information.
•
Neither of us is required to restrict work assignments of representatives who have had access to
confidential information. Neither of us can control the incoming information the other will
disclose to us in the course of working together, or what our representatives will remember, even
without notes or other aids. We agree that use of information in representatives’ unaided
memories in the development or deployment of our respective products or services does not
create liability under this agreement or trade secret law, and we agree to limit what we disclose to
the other accordingly.
d.
Disclosing confidential information if required to by law.
Each of us 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 of us 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.
4.
Length of confidential information obligations.
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a.
Termination.
This agreement continues in effect until one of us terminates it. Either of us may
terminate this agreement for any reason by providing the other with 30 days’ advance written notice.
Termination of this agreement will not change any of the rights and duties made while this agreement
is in effect.
b.
No other use or disclosure of confidential information.
Except as permitted above, neither of us will
use or disclose the other’s confidential information for five years after we receive it. The five-year time
period does not apply if applicable law requires a longer period.
5.
General rights and obligations.
a.
Law that applies; jurisdiction and venue.
The laws of the State of Washington govern this
agreement. If federal jurisdiction exists, we each consent to exclusive jurisdiction and venue in the
federal courts in King County, Washington. If not, we each consent to exclusive jurisdiction and venue
in the Superior Court of King County, Washington.
b.
Compliance with law.
Each of us will comply with all export laws that apply to confidential
information.
c.
Waiver.
Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of
that, or any other, right or remedy.
d.
Money damages insufficient.
Each of us acknowledges that money damages may not be sufficient
compensation for a breach of this agreement. Each of us agrees that the other may seek court orders to
stop confidential information from becoming public in breach of this agreement.
e.
Attorneys’ fees.
In any dispute relating to this agreement the prevailing party will be entitled to
recover reasonable attorneys’ fees and costs.
f.
Transfers of this agreement.
If one of us transfers this agreement, we will not disclose the other’s
confidential information to the transferee without the other’s consent.
g.
Enforceability.
If any provision of this agreement is unenforceable, the parties (or, if we cannot agree,
a court) will revise it so that it can be enforced. Even if no revision is possible, the rest of this
agreement will remain in place.
h.
Entire agreement.
This agreement does not grant any implied intellectual property licenses to
confidential information, except as stated above. We may have contracts with each other covering other
specific aspects of our relationship (“other contracts”). The other contract may include commitments
about confidential information, either within it or by referencing another non-disclosure agreement. If
so, those obligations remain in place for purposes of that other contract. With this exception, this is the
entire agreement between us regarding confidential information. It replaces all other agreements and
understandings regarding confidential information. We can only change this agreement with a signed
document that states that it is changing this agreement.
Exhibit Page 4
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
EXHIBIT C: BUSINESS CONTINUITY MANAGEMENT (BCM) FRAMEWORK
(to be provided under separate cover)
Exhibit Page 5
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
EXHIBIT D: ADDITIONAL VENDOR OBLIGATIONS
Article 1: Vendor Code of Conduct
Article 2: Insurance Requirements
Article 3: Microsoft Pre-Placement Policy
Article 4: Vendor Subcontractor Obligations
Article 5: Microsoft Travel Policy
Article 1: Vendor Code of Conduct
Microsoft aspires to be more than just a good company – it aspires to be a great company. What will make
Microsoft great is a strong commitment to our mission of enabling people and businesses throughout the world
to realize their full potential. Achieving our mission isn’t just about building innovative technology. It’s also
about who we are as a company and as individuals, how we manage our business internally, and how we think
about and work with customers, partners, governments, vendors, and communities.
The global business environment is continuously changing and demanding more from us as a company and as
employees. Not only does the world expect us to deliver the best products and services, it also expects us to
conduct ourselves ethically and responsibly. It is essential that we conduct ourselves at all times with integrity
and in full compliance with the laws and regulations that govern our global business activities. Microsoft has
established a set of company standards of business practices and regulatory compliance that are set out in the
Standards of Business Conduct which applies to all Microsoft employees, directors, and officers
(www.microsoft.com/mscorp/legal/buscond). The Microsoft Standards of Business Conduct are an extension of
Microsoft’s values and reflect our commitment to ethical business practices and regulatory compliance.
Microsoft expects that its vendors (“Vendors”) will share and embrace the letter and spirit of our commitment to
integrity. We understand that Vendors are independent entities; however, the business practices and actions of a
vendor may impact and/or reflect upon Microsoft. Because of this, Microsoft expects all Vendors and their
employees, agents, and subcontractors (Vendors’ employees, agents, and subcontractors shall hereinafter be
referred to collectively as “Representatives”) to adhere to the Microsoft Vendor Code of Conduct
while they
are conducting business with and/or on behalf of Microsoft
. All Microsoft Vendors should educate their
Representatives to ensure they understand and comply with the Microsoft Vendor Code of Conduct.
a.
LEGAL AND REGULATORY COMPLIANCE PRACTICES
All Microsoft Vendors and their Representatives shall conduct their business activities in full compliance
with the applicable laws and regulations of their respective countries while conducting business with
and/or on behalf of Microsoft. In addition to any specific obligations under Vendor’s agreement with
Microsoft, all Microsoft Vendors shall, without limitation:
•
Comply with all applicable trade controls, export, re-export and import laws or regulations.
•
Conduct business in full compliance with antitrust and fair competition laws that govern the
jurisdictions in which they conduct business.
•
Comply with all applicable environmental laws and regulations regarding hazardous materials, air
emissions, waste and wastewater discharges, including the manufacture, transportation, storage,
disposal, and release to the environment of such materials.
•
Be honest, direct, and truthful in discussions with regulatory agency representatives and
government officials.
•
Not participate in international boycotts not sanctioned by the U.S. government or applicable
laws.
Exhibit Page 6
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
•
Comply with the anti-corruption laws of the countries in which it does business, including the
United States Foreign Corrupt Practices Act, and refrain from making any direct or indirect
payments or promises of payments to foreign government officials for the purpose of inducing
the individual to misuse his/her position to obtain or retain business.
b.
BUSINESS PRACTICES
Microsoft Vendors and their Representatives shall conduct their business interactions and activities with
integrity and in accordance with their obligations under their specific agreements with Microsoft. In
addition to any specific obligations under Vendor’s agreement with Microsoft, all Microsoft Vendors
shall, without limitation:
•
Honestly and accurately record and report all business information and comply with all applicable
laws regarding their completion and accuracy.
•
Create, retain, and dispose of business records in full compliance with all applicable legal and
regulatory requirements.
•
Protect and responsibly use both the physical and intellectual assets of Microsoft including
property, supplies, consumables, and equipment when authorized by Microsoft to use such assets.
•
Use Microsoft provided information technology and systems (including e-mail) only for
authorized Microsoft business-related purposes. Microsoft strictly prohibits Vendors and their
Representatives from using Microsoft provided technology and systems to create, access, store,
print, solicit, or send any material that is intimidating, harassing, threatening, abusive, sexually
explicit or otherwise offensive or inappropriate and/or send any false, derogatory, or malicious
communications using Microsoft provided information assets and systems.
•
Comply with all Microsoft requirements for maintenance of passwords, confidentiality, security,
and privacy procedures as a condition of providing Microsoft with goods or services or receiving
access to Microsoft’s internal corporate network, all systems and buildings. All data stored or
transmitted on Microsoft owned or leased equipment is to be considered private and is the
property of Microsoft. Microsoft may monitor all use of the corporate networks and all systems
(including e-mail) and/or access all data stored or transmitted using the Microsoft network.
•
Comply with the intellectual property ownership rights of Microsoft and others including but not
limited to copyrights, patents, trademarks, and trade secrets.
•
Use software, hardware and content only in accordance with their associated license or terms of
use.
•
Speak to the press on Microsoft’s behalf only if Vendor and/or Representative(s) is expressly
authorized in writing to do so by Microsoft.
•
Use good judgment, discretion, and moderation when offering gifts or entertainment to Microsoft
employees. In doing so, the Vendor and/or its Representatives will refrain from giving Microsoft
employees an individual gift or a combination of gifts with a value greater than $200.00 in a
given year (or any lower amount in accordance with applicable laws) and never offer a bribe,
kickback, bartering arrangement for goods or services, and/or any other incentive to a Microsoft
employee in order to obtain or retain Microsoft business. Gift giving and entertainment practices
may vary in different cultures and waivers to the $200 annual limit above may be possible upon
petition to the Microsoft regional controller; however, any gifts and entertainment given or
received must be in compliance with the law, must not violate the giver’s and/or receiver’s
policies on the matter, and be consistent with local custom and practice.
Exhibit Page 7
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
•
Avoid the appearance of or actual improprieties and/or conflicts of interests. Vendors and/or their
Representatives shall not deal directly with any Microsoft employee whose spouse, domestic
partner, or other family member or relative holds a significant financial interest in the Vendor.
Dealing directly in the course of negotiating the Vendor agreement or performing the Vendor’s
obligations with a spouse, domestic partner, or other family member or relative who is employed
by Microsoft is also prohibited.
•
Avoid insider trading by buying or selling Microsoft’s or another company’s stock when in
possession of information about Microsoft or another company that is not available to the
investing public and that could influence an investor’s decision to buy or sell stock.
•
Prepayments are generally not permitted. In the event that an authorized prepayment has been
made by Microsoft for the purchase of specific services or products, the prepayment can only be
applied to those services or products expressly set forth in the applicable purchase order or SOW.
Any prepayment made on a purchase order that was later cancelled may not be applied to other
services or products, and must be returned to Microsoft within **** days of cancellation of the
purchase order.
c.
ENVIRONMENTAL PRACTICES
Microsoft expects its Vendors to share in its commitment to environmental conservation through
responsible standards and business practices in the workplace. Microsoft Vendors shall conduct their
business practices in full compliance with all applicable environmental laws and regulations. Furthermore,
Microsoft Vendors should strive, without limitation:
•
To implement policies and procedures that reduce wasteful energy and resource consumption.
•
To participate in environmentally conscious recycling programs for paper, plastics, computer
hardware, and other reusable resources.
d.
EMPLOYMENT PRACTICES
Microsoft expects its Vendors to share its commitment to human rights and equal opportunity in the
workplace. Microsoft Vendors shall conduct their employment practices in full compliance with all
applicable laws and regulations. All Microsoft Vendors shall, without limitation:
•
Cooperate with Microsoft’s commitment to a workforce free of harassment and unlawful
discrimination. While we recognize and respect cultural differences, we believe that Vendor
companies should not engage in discrimination in hiring, compensation, access to training,
promotion, termination or retirement based on race, color, sex, sexual orientation, national origin,
religion, age, disability, gender identity or expression, marital status or veteran status.
•
Provide a safe and healthy work environment with adequate people to facilities ratio, noise
abatement measures, personal space, work breaks and ventilation.
•
Fully comply with all applicable safety and health laws, regulations and practices. Adequate steps
shall be taken to minimize the causes of hazards inherent in the working environment.
•
Prohibit the use, possession, distribution, and/or sale of illegal drugs while on Microsoft owned or
leased property.
•
Use only voluntary labor. The use of forced labor whether in the form of indentured labor,
bonded labor, or prison labor by a Microsoft Vendor and/or its subcontractors is prohibited.
•
Not require workers to lodge or file “deposits”, identity papers or other personal affects with their
employer as a condition of continued employment and be free to resign their employment in
accordance with local and national laws or regulations without unlawful penalty or retaliation.
•
Comply with all local and national minimum working age laws or regulations and not utilize
child labor. Furthermore, Vendors shall not employ anyone under the age of 15, under the age for
Exhibit Page 8
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
completing compulsory education or under the legal minimum working age for employment,
which ever is oldest. Microsoft supports the development of legitimate workplace apprenticeship
programs for the educational benefit of younger people and will refrain from doing business with
Vendors and/or their Representatives who abuse such systems. Workers under the age of 18 shall
not perform hazardous work and may be restricted from night work, with consideration given to
educational needs.
•
Not engage in physical discipline or abuse. Physical abuse or discipline, the threat of physical
abuse, sexual or other harassment, verbal abuse or other forms of intimidation is prohibited.
•
Pay living wages under humane conditions. All workers shall be provided with clear, written
information about their employment conditions with respect to wages before they enter
employment and as needed throughout their term of employment. Any deductions from wages as
a disciplinary measure shall not be permitted nor shall any deductions in violation of local or
national law be permitted without the express written permission of the worker concerned. All
disciplinary measures should be recorded. Wages and benefits paid for a standard working week
must meet, at a minimum, national legal standards.
•
Not require workers to work more than the maximum hours of daily labor set by local and
national laws or regulations; ensure that overtime is voluntary and paid in accordance with local
and national laws or regulations.
•
Keep employee records in accordance to local and national laws or regulations and provide to the
employee, in a timely manner, the basis on which they are being paid via pay stub or similar
documentation.
e.
COMPLIANCE WITH THE MICROSOFT VENDOR CODE OF CONDUCT
It is the Vendor’s responsibility to ensure its Representatives understand and comply with the
Microsoft Vendor Code of Conduct and to inform its Microsoft contact (or a member of Microsoft
management) if and when any situation develops that causes the Vendor to operate in violation of
the obligations set forth in this document. Microsoft Vendors are expected to self-monitor their
compliance with this Vendor Code of Conduct. In addition to any other rights Microsoft may have
under its agreement with Vendor, Microsoft may request the immediate removal of any
Representative who behaves in a manner that is unlawful or inconsistent with this Code or any
Microsoft policy.
f.
REPORTING OF QUESTIONABLE BEHAVIOR AND/OR POSSIBLE VIOLATIONS
To report questionable behavior or possible violation of the Vendor Code of Conduct that occurred
while a Vendor or its Representative was providing goods or services to Microsoft, Microsoft has a
variety of resources available to assist. Please work with your primary Microsoft contact in
resolving a business practice or compliance concern, however, Microsoft recognizes there may be
times when this is not possible or appropriate to report such matters. In these instances, please
contact any of the following:
1.
The Microsoft Business Conduct Line at ****.
2.
If you are calling from outside the United States, you may make a collect call to the Business
Conduct Line by accessing an international operator and asking to place a collect call to ****.
3.
If you are a Vendor with access to Microsoft’s intranet, you may send an e-mail to the Director of
Compliance by e-mailing the Business Conduct and Compliance alias, ****.
4.
Send a letter to the Director of Compliance at Microsoft Corporation, Law and Corporate Affairs,
One Microsoft Way, Redmond, WA 98052 or send a confidential fax to ****.
Exhibit Page 9
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
Microsoft will not tolerate any retribution or retaliation taken against any individual who has, in
good faith, sought advice or reported questionable behavior and/or a possible violation of the
Vendor Code of Conduct.
Article 2: Insurance Requirements
Insurance Requirements.
Prior to the commencement of the Services to be performed under this Agreement
and throughout the entire Term of this Agreement, Vendor shall procure and maintain the following insurance.
Such insurance shall be in a form and with insurers acceptable to Microsoft and shall comply with the following
minimum requirements:
(a) Comprehensive General Liability.
Vendor will obtain and maintain a policy of “general”,
“public”, or “commercial” liability insurance as follows:
(i)
Policy limits of not less than $**** each occurrence for bodily injury and $**** each
occurrence for damage to property, or, alternatively, $**** combined single limit each occurrence for bodily
injury and property damage combined.
(ii)
Policy to be the “occurrence” form, including coverage for premises and
operations, contractual liability (including insurable contractual liability assumed in this Agreement), broad
form property damage, and products and completed operations.
(iii)
The policy shall name Microsoft as an additional insured to the extent of the contractual
liability assumed by Vendor in this Agreement, and shall contain a severability of interests’ provision in favor of
the additional insureds.
(b) Workers’ Compensation
– Vendor shall at all times comply with all applicable workers’
compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full
extent applicable. Such workers’ compensation and occupational disease requirements shall include coverage
for all employees of Vendor, and for all employees of any Subcontractor retained by Vendor, suffering bodily
injury (including death) by accident or disease, which arises out of or in connection with the performance of this
Agreement by Vendor. Satisfaction of these requirements will include, but will not be limited to:
(i)
full participation in any required governmental occupational injury and/or disease
insurance program, to the extent participation in such program is mandatory in any jurisdiction, and
(ii)
purchase of workers’ compensation and occupational disease insurance providing
benefits to employees in full compliance with all applicable laws, statutes, and regulations (but only to the
extent such coverage is not provided under a mandatory government program as in a.) above), and/or
(iii)
maintenance of a legally permitted and governmentally approved program of self
insurance for workers’ compensation and occupational disease.
Except to the extent prohibited by law, the program of Vendor’s compliance with workers’
compensation and occupational disease laws, statutes, and regulations in (a), (b), or (c) above will provide for a
full waiver of rights of subrogation against Microsoft, its directors, officers, and employees, all of which rights
are also hereby waived. If Vendor, or any Subcontractor retained by Vendor, fails to effect and maintain a
program of compliance with applicable workers’ compensation and occupational disease laws, statutes, and
regulations, and Microsoft incurs liability or fines or is required by law to provide benefits to such employees,
or to obtain coverage for such employees, Vendor shall
Exhibit Page 10
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
indemnify Microsoft for such fines, payment of benefits to Vendor or Subcontractor employees or their heirs or
legal representatives, and/or the cost of effecting coverage on behalf of such employees.
(c) Employers Liability
– Vendor shall maintain coverage for employers’ liability with a policy
limit of not less than $**** per accident. In jurisdictions where commercial insurance of workers’ compensation
is not permitted, this requirement may be fulfilled through addition of an “Employers Stop Gap Liability”
endorsement to the comprehensive general liability policy required above.
(d) Professional Liability/Errors & Omissions Liability.
Vendor shall maintain policy limits of
not less than $**** each claim. Such insurance shall include coverage for infringement of proprietary rights of
any third party, including without limitation copyright, trade secret and trademark infringement as related to
Vendor’s performance under this Agreement. Throughout the Term of this Agreement, the Professional
Liability/Errors & Omissions Liability insurance’s retroactive coverage date will be no later than the Effective
Date of this Agreement. Upon expiration or termination of this Agreement, Vendor will either maintain active
policy coverage, or an extended reporting period, providing coverage for claims first made and reported to the
insurance company within one year after the end of the Agreement.
(e) General Requirements Applicable to All Above Coverages
– The following general
requirements shall be applicable to all coverages referenced anywhere in this Section:
(i)
The above-referenced insurance policies shall be primary and not contributory to any
insurance or program of self-insurance maintained by Microsoft.
(ii)
Any deductible or retention in excess of $**** per occurrence or accident under any of
the above required coverages shall be subject to the approval of Microsoft prior to the commencement of the
Agreement.
(iii)
All deductibles and premiums associated with the above coverages will be the
responsibility of Vendor.
(iv)
If in the opinion of Microsoft the amount of liability coverage is not adequate by reason
of inflationary pressures, experience or the nature and content of Vendor’s activities, Vendor shall increase the
amount of insurance coverage as reasonably required by Microsoft.
(v)
At the request of Microsoft, Vendor will provide to Microsoft, or make available for
Microsoft’s review, copies of certificates of insurances required herein.
(vi)
The above referenced insurance limits shall not in any way limit the liability of Vendor
or the liability of any Vendor Subcontractor during their performance under this Agreement. Where any
Subcontractor is retained by Vendor in the performance of this Agreement, Vendor shall either require such
Subcontractor to assume the same insurance obligations on behalf of Microsoft as are required of Vendor herein,
or extend its insurance to cover any Subcontractor retained by Vendor.
(f) Certificates of Insurance
– Prior to the inception of this Agreement, Vendor shall provide to
Microsoft certificates of insurance evidencing full compliance with the insurance requirements contained herein.
Such certificates shall be kept current throughout the entire period of the Agreement, and Vendor shall provide
for at least thirty (30) calendar days advance notice to Microsoft if the coverage is to be canceled or materially
altered so as not to comply with the foregoing requirements. Failure by Vendor to furnish certificates of
insurance or failure by Microsoft to request same shall not constitute a waiver by Microsoft of the insurance
requirements set forth herein. In the event of such failure on the part of Vendor, Microsoft expressly reserves the
right to enforce these requirements.
Exhibit Page 11
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
(g) Notice of Loss, Injury or Damage
– In the event of any “significant” injury to persons or
damage to property that occurs on the premises of Microsoft during the performance of this Agreement by
Vendor or any Subcontractor thereof, Vendor shall notify Microsoft as promptly as reasonably practical after the
occurrence of such injury or damage, and shall provide adequate details to enable Microsoft to investigate the
cause of such injury or damage. For the purposes of this provision, the term “significant” shall mean injury to
persons that results in hospital treatment of such injury, and for damage to property, any damage or loss of
property in excess of ****.
(h) Workplace Hazards
– If Vendor encounters unsafe conditions or workplace hazards in a
Microsoft provided and controlled workplace that poses a safety hazard to Vendor’s employees, Vendor shall
advise Microsoft promptly in written form of the existence and location of such condition or hazard. If
Microsoft is unable to respond and correct the hazard on a timely basis, Vendor shall require its employees to
take additional safety and personal protection measures as appropriate to reduce the potential risk of injury to
employees working in the area of the condition or hazard until such time as Microsoft is able to correct the
hazard.
(i) Revised Code of Washington
– To the extent of the indemnity set forth in Section 7 (General
Indemnity) of the Agreement, except to the extent prohibited by law, and solely as respect to bodily injury
claims by any employees, Subcontractors and/or agents of Vendor which fall within the scope of the foregoing
indemnity, Vendor expressly waives its immunity under industrial insurance laws, including but not limited to
Title 51 of the Revised Code of the State of Washington, as respects injuries or death suffered by any
employees, Subcontractors and/or agents of Vendor.
Exhibit Page 12
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
Article 3: Microsoft Pre-Placement Policy
Microsoft requires all temporary personnel agencies, vendors, suppliers and independent contractors
(collectively, “Vendor Employees”) conduct pre-placement background checks on all Vendor employees
performing services that require any access to Microsoft resources such as email, network access, cardkey, or
other access badges. Before assigning any Vendor employee to perform any such services under this Agreement,
Vendor will conduct a pre-placement background check for convictions, covering the last five years
(collectively “background check”). If the Vendor employee successfully completed Vendor’s background check
within twenty-four months of Vendor employee’s placement with Microsoft, no new background check will be
required. Where a Local Agreement specifies that the services will require a Vendor employee to access the
credit card or social security information of a Microsoft customer (“Personally Identifiable Information”),
before assigning a Vendor employee to perform any such services, Vendor will conduct a pre-placement credit
check covering the last three (3) years. If the Vendor employee successfully completed Vendor’s credit check
within twelve months of Vendor employee’s placement with Microsoft, no new credit check will be required.
Vendor will comply with the Fair Credit Reporting Act and any other applicable on background checks and
credit checks. If Vendor chooses to outsource the function of these background and credit checks, Vendor shall,
with Microsoft’s consent, use an established and reputable commercial background check company. If Vendor
uses any Subcontractors to perform services under this Agreement that require any access to Microsoft resources
such as email, network access, cardkey, or other access badges, or that require a Subcontractor to access the
credit card or social security information of Microsoft customer, Vendor will ensure its agreements with
Subcontractors include the requirements set forth in this policy.
If the background check or credit check discloses information that Vendor, in its sole discretion, concludes
would make Vendor’s employee or Subcontractor unacceptable for placement with Microsoft, Vendor will not
assign said individual to render any services to Microsoft.
If Microsoft or Vendor becomes aware of criminal activity by Vendor’s employee or Subcontractor while
Vendor’s employee or Subcontractor is assigned to work for Microsoft, and Vendor determines this information
makes Vendor’s employee or Subcontractor an unacceptable placement, Vendor will take complete
responsibility for removing said individual from the Microsoft assignment and from Microsoft property. Vendor
shall comply with all applicable laws when removing any Vendor employee or Subcontractor from Microsoft
premises. If the criminal activity would suggest a threat of physical harm to Microsoft property or employees,
the parties must inform their respective business contact immediately, but in no event later than 24 hours after
becoming aware of the information.
Exhibit Page 13
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
Article 4: Vendor Subcontracting Requirements
Subcontractor Requirements
In the event Vendor is unable to comply with the percentage purchase requirements in the Agreement after using
best efforts, Vendor shall have the right to include in the calculation of the amount paid by Vendor to
Subcontractors those amounts paid by Vendor to Minority Owned and Operated Businesses and to Women
Owned and Operated Businesses. By the tenth (10
th
) business day following November 30 and May 31, Vendor
shall report their subcontracted spend for the previous six month period via the Microsoft Supplier Diversity
Portal (https://www.suppliergateway.com/microsoft/). Failure by the Vendor to submit their subcontracted
spend in compliance to the above referenced dates may, at Microsoft’s sole discretion, result in the
reclassification or loss of vendor status and/or participation in MSVP.
If Vendor has used best efforts to fulfill its obligations under this section but has failed to do so for reasons
beyond Vendor’s reasonable control, then the Vendor Contact shall, at Microsoft’s request:
1.
Meet with the Microsoft Vendor Account Manager (“VAM”) and Supplier Diversity Program Manager to
discuss Vendor’s efforts to comply. If the VAM and Supplier Diversity Program Manager determine that
Vendor has made best, but unsuccessful, efforts to be in compliance, then, at Microsoft’s sole reasonable
discretion, (a) Microsoft shall not enforce Vendor’s obligations under this section for a period not to exceed
the timeframe required by Vendor to comply with the provisions of subsection 2, below, (b) Microsoft shall
confirm the same in writing, and (c) Microsoft shall not consider Vendor to be in breach of its obligations
under this section, and
2.
Develop, in conjunction with the VAM and Supplier Diversity Program Manager, a mutually agreeable plan
(including, but not limited to, a compliance timeline, quarterly compliance milestones, and quarterly
reporting requirements) by which Vendor shall come into compliance with its obligations hereunder.
If, after meeting with the Vendor contacts, Microsoft determines in its sole reasonable discretion that it is not
feasible or reasonable to require Vendor’s full compliance with this section, Microsoft shall either (a) modify
the percentage requirements in order to facilitate Vendor’s compliance or (b) eliminate Vendor’s obligation to
comply with this section in its entirety.
The provisions of this section shall not apply if Vendor’s annual receipts are less than **** and the Vendor
qualifies as a small business as defined under the Small Business Administration’s Table of Size Standards
dated October 1, 2002. However, Vendor must submit an exemption request via the Microsoft Supplier
Diversity Portal for each reporting period. If Microsoft does not approve the exemption request, Microsoft shall
notify the vendor via e-mail that the Vendor must report their subcontracted spend.
Exhibit Page 14
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
Article 5: Microsoft Travel Policy
In general, Microsoft does not pay for travel expenses. If Microsoft agrees in a SOW to pay Vendor’s expenses
while traveling on authorized Microsoft business, then Microsoft will reimburse Vendor for all reasonable and
necessary expenses incurred in accordance with the terms of the SOW and the following policies.
Vendor Responsibility:
•
To minimize travel expenses whenever possible by using the least expensive options that do not result
in unreasonably ineffective use of work time or undue inconvenience to the traveler.
•
To obtain Microsoft’s written approval before incurring travel expenses for which reimbursement will
be sought.
•
To accurately document all travel expenses.
Airline Tickets:
Vendors should purchase non-refundable airline tickets, and purchase them a minimum of
seven (7) days in advance of the travel departure date.
Frequent Flyer/Frequent Guest Programs:
Vendors may retain such program awards and benefits.
Participation in these programs must not influence flight or lodging selections in any manner that would result in
increased costs to Microsoft.
Cancellations:
Vendor shall not seek reimbursement for travel expenses that are cancelled by Vendor.
When a trip is cancelled by Microsoft after the ticket/invoice has been issued, the traveler shall inquire about
using the same ticket for future travel for Microsoft or obtain a refund to be applied to any request for
reimbursement. Vendors are responsible for canceling hotel rooms and Microsoft will pay no expenses for hotel
expenses which could have been avoided by prompt cancellation.
Excess Baggage:
Microsoft will reimburse for excess baggage charges only:
•
When Vendor travels with heavy or bulky materials or equipment necessary to perform Work;
•
When the excess baggage consists of Microsoft property; or
•
When Vendor travels on Microsoft business for more than 14 consecutive days.
Vendors Using MS Travel Program
Vendors utilizing the MS Travel Program are required to use program vendors whenever possible to take
advantage of negotiated rates for air, hotel and car accommodations. Vendors must review and implement all
procedures outlined in the “MS Travel Program – Vendors Procedures” document, available by emailing a
request to ****.
Hotel Reservations:
Hotel reservations MUST be made through one of the following methods:
•
Travelport (US based travelers only)
•
Designated travel agency
•
Event Registration (when applicable)
Hotel Selection:
Refer to Microsoft’s preferred hotel database **** (click on Travel then Hotel Program) or
send email to ****. If a Microsoft hotel rate is not available, use an American Express rate or the least
expensive property in a similar hotel category.
Car Rental Selection:
See **** (click on Travel) or send email to****
Rail Travel:
Rail travel should be used when it is less expensive than air travel, adds no more than one and a
half hours to the total travel time, or is timelier than driving.
Exhibit Page 15
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.
Expense Reimbursement
Reimbursable Expenses:
Reimbursable items include but are not limited to:
•
Airfare and surface transportation (Economy/Coach Class) including parking and tolls
•
Car rental (Compact/Midsize; full-size when three or more vendors travel together)
•
Gratuities/tips (within reason)
•
Hotel/lodging
•
Meals incurred during out-of-town trip (not to exceed $75 USD per day or as specified in the SOW)
•
Saturday night stay-over (Weekend hotel expenses are reimbursable if airfare savings result in a lower
overall cost for the trip by at least $250 or equivalent currency and the expenses do not exceed the
airfare savings.)
Non-Reimbursable Expenses:
Non-reimbursable items include but are not limited to:
•
Barber, hair stylist, manicurist, and other grooming/personal service expenses
•
Entertainment (including entertaining Microsoft employees and any event entertainment)
•
Foreign travel document requirements
•
Free or upgrade certificates for flight, hotel, or car rental
•
Laundry and dry cleaning
•
Membership fees (including frequent flyer/frequent guest programs)
•
Any automobile fuel or rental insurance
•
Telephone calls (not Microsoft business related)
•
Trip or flight insurance
Questions on Travel Policy Issues? Direct to ****
Exhibit Page 16
**** = Certain information has been omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect to the omitted portions.