Preview of our top selling Internet Access Agreement
Prodigy / Microsoft - Internet Sign-Up Wizard Referral Agreement
[Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.]
SIGNED ORIGINAL
INTERNET-SIGN UP WIZARD REFERRAL AND MICROSOFT INTERNET EXPLORER
LICENSE AND DISTRIBUTION AGREEMENT
This Internet-Sign Up Referral a
nd Microsoft Internet Explorer License and Distribution Agreement ("Agreement") is made and entered into this 8 day of January, 1997 ("Effective Date"), by and between MICROSOFT CORPORATION, a Washington corporation, One Microsoft Way, Redmond, WA 98052-6
399 ("MS"), and Prodigy Services Corporation, a Delaware corporation ("COMPANY").
This Agreement includes two distinct business arrangements.
Under the first arrangement, MS plans to develop and distribute an "Internet Connection Wizard
" as a means of promoting internet access services for various Internet access service providers, including COMPANY, and of acquiring subscribers for such access services. COMPANY will pay MS a referral fee for each subscriber acquired by means of the Ref
erral Server.
Under the second arrangement, COMPANY may distribute, on a royalty-free basis, a customized version of Microsoft Internet Explorer to subscribers or potential subscribers of its Internet access services.
In consideration of the mutual promises and covenants contained herein, the parties agree as follows:
1. DEFINITIONS. The following terms, whenever initially capitalized, shall
----------- have the following meanings for purposes of this Agreement:
1.1 "Access" shall mean telecommunications facilities and services that enable a computer user to access and use Internet sites and content by means of a TCP/IP connection.
1.2 "COMPANY Information" shall mean information regarding or relating to the ISP Service such as order processing information, fees, service plans, etc., and other information that is reasonably necessary to describe and solicit orders of the IS
P Service to the ISP Subscriber and/or such other information that has been mutually agreed to by the parties.
1.3 "Comic Chat" shall mean the graphical Internet chat client in all available language versions requested by COMPANY, and for all available platforms.
1.4 "Criteria" shall mean the applicable Internet Explorer criteria as defined in the Microsoft Internet Explorer Logo Qualification Criteria, attached to Exhibit G as Attachments 1 and 2, and such future versions as established
by MS in its sole discretion.
1.5 "Guidelines" shall mean the guidelines for use of the Logo as outlined in the Microsoft Internet Explorer Logo Usage Guidelines which are attached hereto as Exhibits G and H and are an integral part of this Agreement.
1.6 "IEAK" shall mean the Internet Explorer Administration Kit, including any updates to the IEAK as may be provided by MS from time to time, which contains a single copy of the Licensed Software in object code as well as a set of tools tha
t enable COMPANY to perform limited customizations to the Licensed Software in order to facilitate the ISP Subscriber sign up process, and to automate the task of creating diskettes/CD ROMs for distribution. COMPANY shall use the IEAK in accordance with t
he instructions in the IEAK and the Logo Guidelines provided by MS.
1.7 "Internet Connection Wizard" shall mean an electronic referral mechanism to be developed by MS to promote the ISP services for various ISP service providers, including COMPA
NY, and which ordering mechanism shall enable the end user to order ISP Service via a link to COMPANY's Sign-up Server or other method mutually agreed to by the parties. The Internet Connection Wizard shall prompt the ISP Subscriber to enter various Locat
o
r Information. The Internet Connection Wizard shall be launched from an icon on the "desktop" of the English language version of Windows 95 distributed in the United States and Canada designated as "The Internet" or such other name designated by MS. MS ma
y include the Internet Connection Wizard in other MS products as determined by MS. An overview of the referral and ordering process is set forth in Exhibit Z.
1.8 "Internet Explorer" shall mean the current and future versions of (a) Microsoft Int
ernet Explorer (Domestic English Language and such other foreign language versions requested by COMPANY and which MS has available) for the following platforms: Windows 3.x (including Windows for Workgroups 3.x), Windows NT 4.x, Windows 95 and Apple Macin
tosh; and (b) a customized version of Internet Explorer created through the use of the IEAK. Availability of various versions of Internet Explorer is summarized in Exhibit F.
1.9 "Internet Mail and News" shall mean the client for email and Internet newsgroups in all available language versions requested by COMPANY, and for all available platforms.
1.10 "Internet Product" shall mean any COMPANY product which provides access to or information about the Internet. An Internet Product may not
be a personal computer. For purposes of this Agreement, "ISP Service" (defined below) shall be a type of Internet Product.
1.11 "Internet Site" shall mean COMPANY's worldwide web site(s) which meet the applicable Criteria.
1.12 "ISP In
formation" shall mean information regarding or relating to internet access services (including the ISP Service) such as order processing information, fees, service plans, etc., and other information that is reasonably necessary to describe and solicit ord
ers of such internet access services to the internet access service subscriber and/or such other information that has been mutually agreed to by MS and an internet service provider (including COMPANY).
1.13 "ISP Information Page" shall mean a HTML
based page which includes ISP Information, to be maintained by COMPANY and hosted on the MS Referral Server. The ISP Information Page shall be downloaded to the prospective ISP Subscriber as part of the ordering and referral process.
1.14 "ISP P
hone Book(s)" shall mean a listing of names of ISPs and associated telephone numbers and other ISP Information, including COMPANY Information. ISP Phone Books may be unique to a given telephone area code and/or geographic region. There may be one or more
I
SP Phone Books specific to a single telephone area code, geographic region or Service Area. The ISP Phone Book(s) shall be hosted on one or more Referral Server(s). MS shall solely determine the placement, presentation and content of COMPANY Information i
n
the ISP Phone Book(s). As of the Effective Date, MS maintains a single ISP Phone Book for a particular telephone area code and/or geographic region, and the names of ISPs in the ISP Phone Book are randomly listed and periodically rearranged so as to not
provide any particular ISP with a preferred position.
1.15 "ISP Referral Fee" shall mean an amount set forth in Exhibit D for each new ISP Subscriber.
1.16 "ISP Service" shall mean a COMPANY service, listed in Exhibit B, which provides a
n internet protocol (IP) access service to the Internet as contemplated by this Agreement. The parties acknowledge that COMPANY may provide access to the Internet via other Internet Product(s) not listed in Exhibit B.
1.17 "ISP Subscriber" shall mean any individual or legal entity who subscribes to the ISP Service through the Referral and Ordering Process as described in Exhibit Z (as may be updated from time to time) and remains a subscriber with the ISP Serv
ice for three (3) consecutive months.
1.18 "License Key" shall mean the 10-digit alpha numeric code provided by MS that enables COMPANY to use the customization features in the IEAK.
1.19 "Licensed Software" shall mean, collectively, Internet Explorer, NetMeeting, Internet Mail and News, and Comic Chat.
1.20 "Locator Information" shall mean an ISP Subscriber's name, email and conventional mailing addresses, telephone and facsimile numbers, credit card number, and any other da
ta about such subscriber that enables the possessor of such information to personally identify the end user. All Locator Information shall belong solely to COMPANY and shall not be used, retained or stored by Microsoft except as required by MS to fulfill
its obligations under this Agreement.
1.21 "Logo" shall mean the "Microsoft(R) Internet Explorer" logo depicted in the Guidelines or such additional or replacement logos as MS may provide from time to time under this Agreement.
1.22 "NetMeeting" shall mean Microsoft's realtime collaboration and communication software in all available language versions requested by COMPANY, and for all available platforms.
1.23 "Referral Server" shall mean a server maintained by MS which shall pr
ovide an ISP Subscriber with one or more ISP Phone Books, and which shall enable the ISP Subscriber to transmit ordering information, via the Internet Connection Wizard to the Sign-up Server.
1.24 "Service Area" shall mean the area in which COMPANY currently provides or will provide Access, as of the Effective Date, as set forth in Exhibit B.
1.25 "Sign-up Server" shall mean a server maintained by COMPANY which shall enable the ISP Subscriber to order ISP Service from COMPANY and shall f
urther enable COMPANY to configure the ISP Subscriber's copy of the Licensed Software (hosted on the ISP Subscriber's computer), all via on-line transmission. COMPANY shall use the Sign-up Server to configure the ISP Subscriber's copy of Licensed Software
in accordance with the ISP Subscriber Configuration Guidelines set forth in Exhibit E.
1.26 "Windows 95" means the English language version of Microsoft's Windows 95 operating system, including upgrades and direct successor versions thereof relea
sed and distributed by Microsoft in the United States and Canada during the Term, but not including any version of Windows NT. "Windows 95" can include both a retail upgrade version which is upgrade of current operating system technology, as well as an or
iginal equipment manufacturer ("OEM") version which constitutes a full operating system installation, inclusive of upgrade/replacement code.
2. LICENSE FOR DISTRIBUTION OF CUSTOMIZED VERSION OF MICROSOFT INTERNET
--------------------------------------------------------------------
EXPLORER; LOGO LICENSE; AND LICENSE RESTRICTIONS
------------------------------------------------
2.1 MS grants to COMPANY a nonexclus
ive, limited, royalty-free license during the term of this Agreement to (a) customize Internet Explorer using the IEAK solely in accordance with the instructions provided in the IEAK's "Custom ISK Wizard"; and (b) use, reproduce, license, sublicense, disp
l
ay, perform or otherwise distribute (including electronic distribution via download from the ISP Service or Internet Site), and have used, reproduced, licensed, sublicensed, displayed, performed or otherwise distributed, to and by third parties (directly
a
nd indirectly) through COMPANY's distribution channel the Licensed Software (including Internet Explorer as may be customized by COMPANY) to potential end users of COMPANY's Internet Product(s) in the United States and Canada. COMPANY acknowledges and agr
ees that its use of the IEAK to customize Internet Explorer requires the rightful receipt from MS of the License Key allocated to COMPANY.
2.2 COMPANY acknowledges and agrees that its use of the IEAK to customize Internet Explorer requires the ri
ghtful receipt from MS of the License Key allocated to COMPANY. COMPANY agrees that it shall use the IEAK solely in accordance with the instructions provided in the IEAK's Custom ISK Wizard that is available to COMPANY upon input of the allocated License
Key and in accordance with the Logo Guidelines provided by MS.
2.3 [Section intentionally omitted]
2.4 Subject to and expressly conditioned upon compliance with the terms and conditions of this Agreement, MS hereby grants to COMPANY
a worldwide, nonexclusive, non-assignable, nontransferable, royalty-free, right to use the Logo solely in conjunction with COMPANY's Internet Site(s) and/or Internet Product(s) and in any advertising, marketing, technical or other materials related to Li
c
ensed Software which are distributed, transmitted or promoted by COMPANY or its distributors in connection with this Agreement and solely in the manner described in the Guidelines. COMPANY agrees and acknowledges: MS owns the Logo; use of the Logo will in
u
re to the benefit of MS; COMPANY will not adopt, use, or register any corporate name, trade name, trademark, service mark, or certification mark, or other designation similar to, or containing in whole or in part, the Logo; COMPANY's use of the Logo shall
adhere to the Criteria.
2.5 COMPANY may not reverse engineer, decompile or disassemble the Licensed Software.
2.6 COMPANY shall only distribute NetMeeting in conjunction with Internet Explorer, provided that COMPANY may separately di
stribute NetMeeting to an ISP Subscriber who received a copy of Internet Explorer without NetMeeting and as a version upgrade to an ISP Subscriber who has received a prior version of NetMeeting.
2.7 COMPANY may not permit further redistribution of the Licensed Software by ISP Subscribers.
2.8 COMPANY shall maintain and not alter or remove any copyright, trademark and other protective notices contained in the Licensed Software, including the end user license agreement ("EULA") which is
included in the setup installation of the Licensed Software. COMPANY shall also comply with Microsoft's trademark guidelines with respect to the proper use of Microsoft trademarks associated with the Licensed Software. Notwithstanding the foregoing, for v
e
rsions of the Licensed Software distributed by COMPANY, COMPANY may attach the EULA to COMPANY'S ISP Service member agreement. COMPANY shall obtain Microsoft's permission, which permission shall not be unreasonably withheld or delayed, for any changes to
the installation process of the Licensed Software with Prodigy's installation of the Internet Product distributed directly by COMPANY, such as the "suppression" of the EULA during installation.
2.9 COMPANY shall use commercially reasonable efforts to require its distributors, dealers and others in its distribution channels to comply with Sections 2.5, 2.6, 2.8 and 2.10.
2.10 COMPANY shall not modify, alter or remove contents of the Licensed Software except as expressly provided in this Agreement.
2.11 All rights not expressly granted herein are reserved by MS.
3. MICROSOFT OBLIGATIONS
---------------------
MS shall perform the following:
3.1 Develop Internet Connection Wizard and ISP Phone Book(s); Maintain
------------------------------------------------------------------ ISP Phone Book(s). Provided that COMPANY complies with its obligations under - ---------------
-- this Agreement, MS shall include COMPANY's name, telephone number and other mutually agreed upon COMPANY Information in the applicable ISP Phone Book(s) within thirty (30) days of MS' receipt of (A) COMPANY Information and, (B) for each platform (e.g.
W
indows 95, Windows 3.x, etc.), COMPANY's client software, used to access the ISP Service. Notwithstanding anything to the contrary in this Agreement, commencing six (6) months after COMPANY Information first appears in an ISP Phone Book, MS may move COMPA
N
Y Information to another ISP Phone Book or remove COMPANY Information from one or all ISP Phone Books if (C) during any two calendar quarters during which COMPANY Information has been included in the Referral Server COMPANY's shipments of Licensed Softwar
e
(where Internet Explorer is distributed as the default web browser) falls below eighty-five percent (85%) of total COMPANY shipments of all web browsers or (D) during any single calendar quarter during which COMPANY Information has been included in the R
e
ferral Server the number of new ISP Subscribers for such quarter compared to the number of new subscribers of other ISPs which appear in the same ISP Phone Book as COMPANY for such quarter, is such that COMPANY is in the bottom twenty percent (20%) of all
ISPs listed in the ISP Phone Book. By way of example, if there are six (6) ISPs in an ISP Phone Book, and COMPANY had the fewest number of new subscribers
compared to other ISPs in the ISP Phone Book, then MS could move COMPANY Information to another ISP Phone Book or remove COMPANY Information from one or all ISP Phone Books.
3.2 Distribution of Internet Connection Wizard. Incorporate the
------------------------------------------ Internet Connection Wizard into an icon on the "
desktop" of the English language version of Windows 95 distributed in the United States and Canada designated as "The Internet" or such other name designated by MS.
3.3 Referral Server. Develop and maintain Referral Server and
----
----------- establish a telephone number, or any other communication medium mutually agreed to by the parties, for accessing a Referral Server. As of the Effective Date of this Agreement, the telephone number is toll free. At COMPANY'S request from time t
o time during the term of the Agreement, MS shall promptly update COMPANY Information in the ISP Phone Book.
3.4 Promotion. Include information concerning the ISP Service in press
--------- releases and marketing activities related to promotion of the Internet Connection Wizard.
4. COMPANY OBLIGATIONS
-------------------
COMPANY shall perform the duties described in Exhibit C.
5. PAYMENT AND REPORTING
---------------------
5.1 Advance. n/a
-------
5.2 ISP Referral Fee. In consideration of each ISP Subscriber, COMPANY
---------------- shall pay MS the ISP Referral Fee for each subscription for ISP Service ordered by each ISP Subscriber.
5.3 Reporting. Within forty five (45) days after the end of each
--------- calendar quarter, COMPANY shall furnish MS a statement together with payment for any amount shown thereby to be due to MS. The royalty statement shall be based upon
ISP Referral Fees for the quarter then ended, and shall be in the form of the sample report included on Exhibit D. Late payment(s), including receipts for foreign taxes withheld, if applicable, shall bear interest at the rate of one and one-half percent (
1
.5%) per month or the maximum rate allowable by applicable law, from the date such payment is due until the date it is actually paid. COMPANY's report shall include for each version of the Licensed Software, the number of copies of the Licensed Software l
i
censed or distributed by or for COMPANY during that calendar quarter, including "competitive upgrade" copies as described in Exhibit D. In the event that no copies were licensed or distributed by or for COMPANY during a calendar quarter, COMPANY shall ind
i
cate this on the report. COMPANY's report shall further include the number of copies of all web browsers licensed or distributed by or for COMPANY during that calendar quarter. All such reports shall be maintained in confidence by MS and shall not be disc
l
osed to any third party except to its immediate legal and financial consultants as may be required in the ordinary course of MS' business. In no event shall MS permit access to such reports by employees or independent contractors working on the Microsoft
Network.
5.4 All amounts due hereunder shall be sent to the address listed in Section II. All amounts due hereunder are exclusive of any taxes, duties, fees, excises or tariffs imposed on any of COMPANY's activities in connection with this Agreement.
Such charges, if any, shall be paid by COMPANY.
6. WARRANTIES AND INDEMNITIES
--------------------------
6.1 Microsoft warrants and represents that:
(a) It has the full power to enter into this Agreement and make the
license rights set forth herein; and
(b) The Licensed Software, to the best of its knowledge, does not
infringe any copyright, patent, trade secret, or other proprietary right
held by any third party.
6.2 EXCEPT AS EXPRESSLY WARRANTED IN SECTION 6.1, LICENSED SOFTWARE, THE IEAK,
THE MICROSOFT CONFIDENTIAL INFORMATION AND MICROSOFT TRADEMARKS LICENSED
UNDER SECTION 2 ARE PROVIDED TO COMPANY "AS IS" WITHOUT FURTHER WARRANTY OF
ANY KIND. MICROSOFT DISCLAIMS ALL FURTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NONINFRINGEMENT, WITH RESPECT TO LICENSED SOFTWARE, THE IEAK. THE
MICROSOFT CONFIDENTIAL INFORMATION AND MICROSOFT TRADEMARKS LICENSED UNDER
SECTION 2.
6.3 Indemnity by Microsoft.
----------------------
(a) Microsoft shall, at its expense and COMPANY'S request, defend any
claim or action brought against COMPANY, and COMPANY'S subsidiaries,
affiliates, directors, officers, employees, agents and independent
contractors, to the extent it is based upon a claim that the Licensed
Software and/or the Microsoft trademarks licensed under Section 2
infringe or violate any patent, copyright, trademark, trade secret or
other proprietary right of a third party ("Microsoft Claims"), and
Microsoft will indemnify and hold COMPANY harmless from and against
any costs, damages and fees reasonably incurred by COMPANY, including
but not limited to fees of attorneys and other professionals, that are
attributable to such Microsoft Claims. COMPANY shall: (i) provide
Microsoft reasonably prompt notice in writing of any such Microsoft
Claims and permit Microsoft to answer and defend such Microsoft
Claims; and (ii) provide Microsoft information, assistance and
authority, at Microsoft's expense, to help Microsoft to defend such
Microsoft Claims. Microsoft will not be responsible for any settlement
made by COMPANY without Microsoft's written permission, which
permission will not be unreasonably withheld.
(b) Microsoft may not settle any Microsoft Claim under this Section 6.3 on
COMPANY'S behalf without first obtaining COMPANY'S written permission,
which permission will not be unreasonably withheld. In the event
COMPANY and Microsoft agree to settle a Microsoft Claim, Microsoft
agrees not to publicize the settlement without first obtaining
COMPANY'S written permission, which permission will not be
unreasonably withheld.
(c) Microsoft's obligations under this Section 6.3 shall be Prodigy's
exclusive remedy for any breach of the warranty made by Microsoft
under Section 6.1.
6.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT
, INCIDENTAL, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR IEAK
, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
7. TERM OF AGREEMENT
-----------------
The term of this Agreement shall commence as of the Effective Date and shall continue for a period of two (2) years. Thereafter, this Agreement shall automatically renew for successive one year terms unless either party gives the othe
r party thirty (30) days written notice of its intent not to renew.
8. DEFAULT AND TERMINATION
-----------------------
8.1 This Agreement may terminate earlier if any of the following events of default occur: (a) if either party materially f
ails to perform or comply with this Agreement or any provision hereof; (b) if either party fails to strictly comply with the provisions of Section 10 or makes or attempts to make an assignment in violation of Section 13.5; (c) if either party becomes inso
l
vent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (d) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist
, or as they may be amended, is filed by either party ; or (e) if such a petition is filed by any third party, or an
application for a receiver of either party is made by anyone and such petition or application is not resolved favorably to either party within sixty (60) days.
8.2 Termination under subsection 8.1(b) shall be effective as of the date notice is given. In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if such p
arty's defaults have not been cured. The rights and remedies provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement.
8.3 In the event of termination or expiration
of this Agreement for any reason other than COMPANY'S material breach of Section 2.1, COMPANY'S license rights under Section 2.1 shall, with respect to the then current version of the Licensed Software as of the effective date of termination, survive for
a
period of six (6) months following the effective date of termination. In the event of termination of this Agreement for COMPANY'S material breach of Section 2.1, COMPANY'S license rights under Section 2.1 shall with respect to the then current version of
the Licensed Software as of the effective date of termination, survive for a period of sixty (60) days from the effective date of termination. Notwithstanding the foregoing, upon termination of this Agreement, MS shall immediately remove COMPANY's Informa
tion from the ISP Phone Book(s).
8.4 End user licenses validly granted prior to expiration or termination of this Agreement shall survive termination or expiration of this Agreement.
8.5 Sections 1, 5, 6, 8, 10, 11, 12 and 13 shall survive termination of this Agreement.
9. SUPPORT
-------
9.1 COMPANY shall have the sole responsibility and expense for providing all support for the Sign-up Server and all support needed by ISP Subscribers for the Licensed Software and the ISP Service.
9.2 MS will provide COMPANY (but not ISP Subscribers) support for the Internet Connection Wizard. Except for such support, this Agreement does not includ
e technical support from MS to COMPANY. COMPANY shall purchase technical support for IEAK and other products desired by company from MS pursuant to a separate agreement to be negotiated by the parties.
10. NONDISCLOSURE AGREEMENT
-----------------------
10.1 Each party shall protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that such
party uses to protect its own like information. Neither party will use the
other's Confidential Information for purposes other than those necessary
to directly further the purposes of this Agreement. Each party will use
its best efforts not to disclose to third parties the other's Confidential
Information without the prior written consent of the other party. Except
as expressly provided in this Agreement, no ownership or license rights is
granted in any Confidential Information.
10.2 The parties' obligations of confidentiality under this Agreement shall not
be construed to limit either party's right to independently develop or
acquire products without use of the other party's Confidential
Information. Further, either party shall be free to use for any purpose
the residuals resulting from access to or work with such Confidential
Information, provided that such party shall maintain the confidentiality
of the Confidential Information as provided herein. The term "residuals"
means information in non-tangible form, which may be retained by persons
who have had rightful and good faith access to the Confidential
Information, including ideas, concepts, know-how or techniques contained
therein. Neither party shall have any obligation to limit or restrict the
assignment of such persons or to pay royalties for any work resulting from
the use of residuals. However, the foregoing shall not be deemed to grant
to either party a license under the other party's copyrights or patents.
11. NOTICES AND REQUESTS
--------------------
All notices, authorizations, and requests in connection with this Agreement shall be deemed given on the day they are (i) deposited in the U.S. mails, postage prepaid, certified
or registered, return receipt requested; or (ii) sent by overnight courier, charges prepaid, with a confirming fax; and addressed as follows:
NOTICES TO COMPANY: - ------------------
Prodigy Services Corporation 445 Hamilton Avenue White Plains, NY 10601 Attention: General Counsel Phone: 914-448-8713 Fax: 914-448-8223
Copy to: Contract Administration (same address as above) E-mail copy to: notices@prodigy.com
NOTICES TO MS AND PAYMENTS/VOLUME DISTRIBUTION SUMMARIES: - --------------------------------------------------------
Notices: MICROSOFT CORPORATION
One Microsoft Way
Redmond, WA 98052-6399
Attn: Vice President, Public Network Sales Copy to: Law & Corporate Affairs, US Legal Fax: (206) 936-7209
Payments/Volume MICROSOFT CORPORATION Distribution Remittance Processing Summaries: P.O. Box 84808
Seattle, WA 98124-6108
or to such other address as the party to receive the notice or request so designates by written notice to the other.
12. AUDITS
------
12.1 During the term of th
is Agreement, COMPANY agrees to keep all usual and proper records and books of account and all usual and proper entries relating to COMPANY's ISP Subscriptions sufficient to substantiate the number of ISP Subscribers. COMPANY shall maintain on COMPANY pre
mises such records for itself and for each Subsidiary which exercises rights under this Agreement.
12.2 In order to verify statements issued by COMPANY and COMPANY's compliance with the terms of this Agreement, MS may cause an audit to be made o
f COMPANY's applicable books and records. Any audit shall be conducted during regular business hours at COMPANY's facilities upon reasonable advance notice. Any audit shall be conducted by an independent certified public accountant of national stature sel
ected by MS (other than on a contingent fee basis).
12.3 COMPANY agrees to provide MS' designated audit team access to the relevant COMPANY's records and facilities.
12.4 Prompt adjustment shall be made to compensate for any errors o
r omissions disclosed by such audit. Any such audit shall be paid for by MS unless material discrepancies are disclosed. "Material" shall mean the under reporting of five percent (5%) of the amount due. If material discrepancies are disclosed, COMPANY agr
ees to pay MS for the costs associated with the audit in addition to the amount of any discrepancy.
12.5 Microsoft may exercise its right to audit under this Agreement no more than once in any twelve-month period, unless the immediately preceding audit revealed a material discrepancy.
13. GENERAL
-------
13.1 This Agreement shall be construed and controlled by the laws of the State of Washington, and COMPANY consents to jurisdiction and venue i
n the state and federal courts sitting in the State of Washington. Process may be served on either party in the manner provided in Section 11 above, or by such other method as is authorized by law.
13.2 Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, agency relationship or as granting a franchise.
13.3 This Agreement constitutes the entire agreement between the parties with respect to the subject matt
er hereof and supersedes all prior and contemporaneous agreements or communications. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of COMPANY and MS by their respective duly auth
o
rized representatives. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing a
nd signed by an authorized representative of the waiving party.
13.4 If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
13.5 The rights and obligations hereunder shall inure to the benefit of the successors of the parties hereto, provided that neither party may assign this Agreement, in whole or part, without the prior written approval of the othe
r party, which approval shall not be unreasonably withheld or delayed. COMPANY hereby agrees that it will remain responsible for and guarantee the compliance of each majority owned subsidiary or affiliate which exercises rights under this Agreement.
13.6 Any Licensed Software which COMPANY distributes or licenses to or on behalf of the United States of America, its agencies and/or instrumentalities (the "Government"), is provided to COMPANY with RESTRICTED RIGHTS. Use, duplication or disclosure
by the Government is subject to restriction as set forth in subparagraph (c)(l)(ii) of the rights in Technical Data and Computer Software clause at DFAR 252.227-7013, or as set forth in the particular department or agency regulations or rules which provid
e
Microsoft protection equivalent to or greater than the above-cited clause. COMPANY shall comply with any requirements of the Government to obtain such RESTRICTED RIGHTS protection, including without limitation, the placement of any restrictive legends on
the Tool documentation and any license agreement used in connection with the distribution thereof. Manufacturer is Microsoft Corporation, One Microsoft Way, Redmond, Washington 98052-6399. Under no circumstances shall Microsoft be obligated to comply with
any Governmental requirements regarding cost and pricing data and cost accounting. For any distribution or license of the Licensed Software that would require compliance by Microsoft with Governmental requirements relating to cost and pricing data or cost
accounting, COMPANY must obtain an appropriate waiver or exemption from such requirements for the benefit of Microsoft from the appropriate Governmental authority before the distribution and/or license of the Licensed Software to the Government.
13.7 COMPANY acknowledges that the Licensed Software and IEAK are subject to the export control laws and regulations of the US, and any amendments thereof. COMPANY confirms that with respect to the Licensed Software, it will not export or re-export them
,
directly or indirectly, either to (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to,...
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