Microsoft Dynamics Certified Software Advisor Agreement

Transcription

1 Microsoft Dynamics Certified Software Advisor Agreement By clicking the I agree button, Company agrees to be bound by this Microsoft Dynamics Certified Software Advisor (CSA) Agreement. Company represents that it has read and understands the terms of this agreement. If you are entering into this agreement on behalf of an entity, such as your employer, you represent that you have the legal authority to bind that entity. Microsoft offers a variety of incentives ( Incentives ) to motivate qualified companies to engage in defined activities connected to selling Microsoft Dynamics products and services. Only companies that have an effective MPN Agreement and a valid MPN ID may qualify to participate in an Incentive. This Agreement provides terms and conditions, including eligibility requirements, that apply only to the Microsoft Dynamics products and services listed in the Guides, as defined below (the Program ). As explained below and in the Guides, there are additional requirements and guidelines for each Incentive offered by Microsoft. Once Company has accepted the terms of this Agreement, Microsoft will notify Company of its acceptance (or rejection) of the Agreement. If Microsoft accepts, this Agreement will become effective on the date of the Microsoft s notice (the Effective Date ). Section 1 Definitions (d) (e) (f) Activity means the actions that Company must engage in that trigger or relate to an Incentive described in the Guides. Affiliate means any legal entity that owns, is owned by, or is commonly owned with Company. Own means having more than 50% ownership of or the right to direct the management of an entity. Company means the business entity that has an effective MPN Agreement, is qualified to participate in an Incentive, has agreed to the terms of this Agreement and received confirmation of Microsoft s acceptance of the Agreement. Customer License means the form of Microsoft license agreement that Microsoft, or one of its affiliates, uses to license the Products and Services to Customers. Customer means the business entity or individual (other than Company or its affiliates) that enters into a Customer License for Products and Services. Guides means, collectively, the Implementation Guide, Program Guides or any other similar document Microsoft creates that defines eligibility requirements; Incentive rates; eligible products, services and revenue; processes; policies; and other rules and requirements relating to Company s participation in an Incentive. Page 1 of 8

2 (g) (h) (i) (j) (k) (l) (m) (n) (o) Implementation Guide means the document that defines the processes, policies, compliance, requirements and measurements for Incentives for Online Services. The Implementation Guide is not restricted to Dynamics services, and it is posted on the MPN Website. Incentive Payment Rules are the calculation rules and policies, including compliance, prior to incentive disbursement, which are detailed in the Guides. Incentive Payment is the payment made to Company based on the calculation rules of the applicable Incentive and the Incentive Payment Rules. Incentive Schedule means the document that defines the incentive rates, eligible revenue, and calculation of Incentives. Microsoft means the Microsoft contracting entity as identified in the MPN Agreement. MPN Agreement means the Microsoft Partner Network Agreement. MPN Website means the MPN website located at or a successor site designated by Microsoft. The MPN Website provides tools and information about MPN, including Incentives. MPN means the Microsoft Partner Network. Program Guides means the document that that defines the Program eligibility requirements, training certification requirements, minimum revenue requirements, incentive structures, payment schedules, and business rules that describe how the Program works. The Program Guides are posted on the CSA Program Website. There are two Program Guides: (1) Microsoft Dynamics Online Solutions Incentives Program Guide (2) Microsoft Dynamics CSA Program Guide for On-Premise Solutions (p) Program Website means the CSA Program website located at or a successor site designated by Microsoft. The CSA Program Website provides (q) tools and information about the CSA Program. Products and Services means the Microsoft products and/or services eligible to earn Incentives as detailed in a Guide and that Microsoft, or one of its affiliates, provides to Customers. Section 2 Incentives Incentive Payment Terms. The specific terms relating to Incentive Payments, including Incentive Payment Rules and other requirements for registering and earning Incentive Payments, vary by Incentive and are included in the Incentive Schedule and the applicable Guides. Taxes. Except as may be otherwise provided in this Agreement, the MPN Agreement, the applicable Guide, the Incentive Payments Company receives includes any applicable goods and services tax, value added tax, sales tax, gross receipts tax, or any other tax that is applicable as a result of Company s performance under this Agreement and any Incentive, and it is Company s sole responsibility to pay all applicable taxes related to the Incentives it receives. Invoice Submission. If Microsoft requests Company to submit a hardcopy of an invoice for an Incentive Payment, Company will submit such invoice within the specified timeline as instructed by Microsoft. Page 2 of 8

3 (d) Updates, Modifications and Cancellations of Incentives. Microsoft may update, change or remove any portion of an Incentive, and Microsoft may cancel an entire Incentive. Microsoft will use commercially reasonable efforts to provide Company 30 days advance notice of an update or change to an Incentive made during the term of the Incentive, and ninety (90) days advance notice of any cancellation of an Incentive. Company s continued participation in an Incentive following an update or change confirms Company s acceptance of such update or change. For any updates and/or changes that are not provided directly to Company, Microsoft may also post updates and/or changes on the Program Website. Company is responsible for checking the Program Website for any such updates or changes. When the Program Website is updated and/or changed, Company agrees to be bound by the updates and/or changes as of the date the updates and/or changes are posted. Changes and updates are not applied retroactively. (e) (f) (g) (h) (i) Overpayments. In the event Microsoft overpays Company, regardless of the reason, Microsoft may recover such overpayment from Company by deducting amounts from future Incentive Payments, requiring Company to repay the overpayment, or pursuing any other alternative means of collection. In the event Microsoft requests that Company repay an overpayment, Company agrees to promptly do so. Incentive Payment Disputes. Unless a different time period is set forth in an Incentive Guide, Company must notify Microsoft pursuant to Section 9 of this Agreement of any disputes about an Incentive Payment within 90 days of submitting a claim for an Incentive Payment. Non-Compliance with Eligibility Criteria. If Company no longer meets the eligibility criteria associated with an Incentive, Microsoft will notify Company and Company will have 30 days to remedy any lapse in eligibility. If Company remedies the lapse in eligibility within 30 days, there will be no disruption in Company s eligibility to earn Incentive Payments. If Company fails to remedy the lapse in eligibility within 30 days, Company will be ineligible to earn Incentive Payments following the conclusion of the 30 day period. To regain eligibility, Company must show Microsoft that it has complied with all associated eligibility criteria. If Microsoft affirms all eligibility criteria are satisfied, Company will be eligible to earn Incentive Payments at the beginning of the following calendar month. Third Parties. Microsoft will not make any Incentive Payments owed to Company to any third party, unless Microsoft is ordered to do so by a court of law. Local Campaigns, Promotions, Pilot Programs. Microsoft may run local promotions, campaigns, or programs relating to Incentives that identify different or additional activities that qualify for Incentive Payments or temporarily change the amount of an Incentive Payment. The terms and obligations, including eligibility requirements, for any such local promotion, campaign or program will be included in separate documents, and the terms and obligations of such local promotion, campaign or program will not alter or supersede any terms, obligations or provisions in this Agreement. Page 3 of 8

4 (j) Customers within Public Sector. As set forth in the Program Guides, Company may not be eligible to receive Incentive Payments for sales to public sector (including government) customers in certain countries. Section 3 Compliance Anti-Piracy. The Anti-Piracy provision, including all related paragraphs and subsections, set forth in the MPN Agreement are incorporated into the Agreement by reference. Conflicts of Interest. Company will not be entitled to receive Incentive Payments in connection with a Customer (i) that is an Affiliate, or (ii) to which Company owes an agency or fiduciary duty, be it contractual or legal in nature, or (iii) where Company has charged the Customer for the presales advisory services for which it is receiving an Incentive Payment. Company s failure to comply with this provision is a breach of this Agreement. Compliance with Laws and Microsoft s Anti-Corruption Policy. The Compliance with Laws and Microsoft Anti-Corruption Policy provision, including all related paragraphs and subsections, set forth in the MPN Agreement are incorporated into this Agreement by reference. In the event Microsoft learns of any conduct by or relating to Company that would violate Section 3 of this Agreement, upon written notification to Company, Microsoft may (i) deny, suspend or terminate Company s participation in an Incentive or all Incentives; or (ii) terminate this Agreement for cause pursuant to Section 4 in this Agreement. If Microsoft suspends Company s participation under this Section 3, Microsoft may withhold any Incentive Payments during the suspension period. (d) Verifying Compliance. Company will keep all usual and proper records in the ordinary course of business relating to is performance of this Agreement. Company will keep these documents for the period set forth in Section 13(2) of the MPN Agreement. During the identified period, Microsoft s audit team, which may include third party auditors, may audit Company s books, records, operations, processes and facilities for the sole purpose of verifying Company s compliance with this Agreement. Company consents to an audit of its records upon five (5) business days advance notice, except for audits related to counterfeit Products, which does not require prior notice. Audits will be conducted during Company s normal business hours in a manner that does not unreasonably interfere with Company s normal business activities. Company will give the auditor access to the books, records, operations, processes and facilities that the auditor needs to complete a thorough audit. Company will have all applicable books, records and operations available to the auditor at the beginning of the audit of Microsoft provides advance notice. Microsoft and its third party auditors will conduct all inspections accompanied by a Company employee. Company will pay Microsoft s audit costs if an audit uncovers an uncurable breach of this Agreement. If an audit reveals that Company has submitted any fraudulent or false information or information that causes Microsoft damage, Microsoft will provide written notice to Company, may immediately suspend or terminate Company s participation in the MPN, in any or all Incentives, and will be entitled to recover any Incentive Payments wrongly made to Company. If an audit reveals that Page 4 of 8

5 Company has submitted incomplete information or information containing minor inaccuracies, Microsoft will notify Company in writing, and Company will have one (1) week to remedy any incomplete or inaccurate information. If Company remedies the incomplete or inaccurate information, there will be no suspension or termination of Incentives or Incentive Payments. If Company fails to remedy the incomplete or inaccurate information, Microsoft may suspend or terminate Company s participation in the MPN, in any or all Incentives, and Microsoft will be entitled to recover any Incentive Payments made to Company in connection with the information at issue. Microsoft s records and systems shall be authoritative and conclusive for purposes of performing any computation in reviewing Company s performance in Incentives. Section 4 Term and Termination Term. This Agreement will take effect on the Effective Date. Unless terminated earlier by Microsoft, this Agreement will automatically expire 24 months after the Effective Date ( Expiration Date ). Microsoft makes no commitment that it will renew this Agreement or enter into a new Agreement with Company. Termination without Cause. Company may terminate this Agreement at any time, without cause, by giving Microsoft written notice of termination. If Company terminates this Agreement under this Section 4, Company will be immediately removed from all Incentives, and Microsoft will have no obligation to pay Incentive Payments to Company for Activities that are completed after Microsoft receives Company s notice of termination. Microsoft may terminate this Agreement at any time, without cause, due to Company s inactivity in the Program for a period of 12 months, by giving Company 30 day s advance notice of termination. If Microsoft terminates this Agreement under this Section 4, Company will be removed from all Incentives and Microsoft will have no obligation to pay Incentive Payments to Company for Activities that are not completed within 30 days after receipt of the notice of termination. Neither party will be responsible to the other for costs or damages resulting from termination without cause. Termination for Cause. If either party breaches this Agreement and the breach is considered curable, the non-breaching party will notify the other party in writing. If the party alleged to have breached this Agreement does not cure the breach within 30 days of receiving the notice of breach, this Agreement will be terminated, Company will be removed from all Incentives and Microsoft will have no obligation to pay Incentive Payments to Company for Activities completed after the period to cure has expired. If the cause for termination is not curable, termination will be immediately effective on notice from the non-breaching party. In the event of a non-curable breach, Microsoft may remove Company from a specific Incentive or all Incentives and Microsoft will have no obligation to pay Incentive Payments to Company for Activities completed after receipt of the notice of termination. Microsoft retains all other rights and remedies relating to non-curable breaches, including the right to recover Incentive Payments that were wrongly paid to Company. Page 5 of 8

6 The following are examples of incurable breaches by Company, giving Microsoft the right to terminate this Agreement immediately upon written notice: Company s MPN Agreement is terminated with or without cause pursuant to the Termination provisions in the MPN Agreement; Company s MPN agreement expires and Company fails to renew or execute a new MPN agreement within 30 days. Company re-enrolls in the Program (under any name) less than 12 months after having a Microsoft Dynamics CSA Agreement terminated for any reason; Company is unable to provide evidence of having performed the Activities as required in the Guides; Company is shown to have performed unsubstantiated or erroneous Activities; and Microsoft has reasonable grounds to conclude that Company has not acted in good faith in trying to earn Incentive Payments. Examples of not acting in good faith include, but are not limited to, protesting requests for proposals or other procurement processes without legitimate grounds and delaying Customer orders for Company s benefit. (d) Completed Activities. For purposes of the above termination provisions, an Activity will be considered completed only if Company has engaged in and finished the specific Activity, satisfied all related reporting obligations, and requested an Incentive Payment pursuant to the terms of the Program Guide. (e) Adjustment to Incentive Payments. In addition to any other remedies, if Company breaches any term of this Agreement or any of the Guides or fails to act in good faith in trying to earn Incentive Payments, Microsoft may reduce, cancel or withhold Incentive Payments relating to the conduct at issue or all Incentive Payments potentially owed to Company. Microsoft will provide Company written notice of any decision to reduce, cancel or withhold Incentive Payments under this Section 4(e). For any disputes relating to Microsoft s decision to reduce, cancel or withhold Incentive Payments under this Section 4(e), Company is required to contact Microsoft in writing within thirty (30) days of receiving notice of such action, after which time Company waives its right to dispute Microsoft s decision. (f) (g) Waiver of Required Approval. To the extent necessary to implement the termination provisions of this Agreement, each party waives any right it has, or obligation that it may have, now or in the future under any applicable law or regulation, to request or obtain the approval, order, decision or judgment of any court to terminate this Agreement or to effect a variation or termination by using a statutory form. Survival. The following Sections will survive the expiration or termination of this Agreement: Section 2 (Taxes), Section 2(g) (Third Parties), Section 2(e) (Overpayments), Section 3 (Anti-Piracy), Section 3 (Compliance with Laws and Microsoft s Anti-Corruption Policy), Section 5 (Indemnification), Section 6 (Limitations of Liability), Section 7 (Confidentiality), and Section 9 (Miscellaneous), and any provisions explicitly identified in the Guides as surviving expiration or termination. Page 6 of 8

7 Section 5 Indemnification for Third Party Claims In response to claims from any unaffiliated third parties, Company will defend, indemnify and hold Microsoft and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, damages (including reasonable attorneys costs and fees) and judgments (or settlements to which Company consents) related to any alleged or actual default or breach of this Agreement or any other act or omission by Company relating to this Agreement. At Microsoft s option and cost, Microsoft may participate in the selection of counsel, defense and settlement of any claims covered by this Section, in which case Company and Microsoft will work together in good faith. Company must have Microsoft s written consent before settling any claim covered by this Section, and Microsoft will not unreasonably withhold its consent. Section 6 Limitations of Liability To the maximum extent permitted by law, in no event will either party be liable to the other party for any indirect, incidental, consequential, punitive, special, or exemplary damages arising out of or that relate in any way to this Agreement or its performance. This exclusion will apply regardless of the legal theory upon which any claim for such damages is based, whether the parties had been advised of the possibility of such damages, whether such damages were reasonably foreseeable, or whether application of the exclusion causes any remedy to fail of its essential purpose. This exclusion will not apply to either party s liability for breach of its confidentiality obligations, violation of the other party s intellectual property rights, or any direct or indirect loss of profits, data, business, or anticipated savings due to fraud or gross negligence. Section 7 Confidentiality Each party will comply with the confidentiality obligations set forth in the MPN Agreement, which are incorporated by reference into this Agreement, with respect to any Confidential Information (as that term is defined in the MPN Agreement) exchanged under this Agreement. Company acknowledges that this Agreement is Microsoft s Confidential Information. Section 8 Non-Exclusive This Agreement is non-exclusive, meaning that it in no way prohibits Company from licensing, using, recommending or supporting any non-microsoft software, hardware or services. Section 9 Miscellaneous Relationship of parties. Any use of the term partner is for reference purposes only. The parties are independent contractors. This Agreement does not create an employer-employee relationship, partnership, joint venture, or agency relationship and does not create a franchise. Neither Company nor any of its representatives may make any representation, warranty or promise on Microsoft s behalf or otherwise bind Microsoft. Notices. Notices specifically related to this Agreement may be provided by electronic mail or posts to the Program Website or another designated website. The contact person(s) identified Partner Incentive Manager in VOICE will receive notices at the address provided by Company. Notices and Page 7 of 8

8 requests to Microsoft should be sent to the appropriate Microsoft contracting entity identified in the MPN Agreement. Each party may change the persons to whom notices will be sent by giving notice to the other. For notices relating to Incentives, Microsoft may provide notice by electronic mail or posting updates to the MPN Website or another designated website. (d) (e) Order of Precedence. If there is a direct conflict between the MPN Agreement, the terms in the body of this Agreement or the Guides that is not resolved explicitly on the face of those documents, the following is the order of precedence: The MPN Agreement shall control over the other documents; and The terms in the body of this Agreement shall control over the Guides. Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the Agreement to give effect to the stricken clause to the maximum extent possible. Integration and modification. i. Entire Agreement. This Agreement, including the Incentive Schedule, the Guides, the Program Website, the MPN Website and the terms of the MPN Agreement incorporated herein by reference, form the entire agreement between the parties regarding the Incentives. It replaces all prior agreements, communications and representations between the parties regarding the Incentives. ii. Revisions to this Agreement. This Agreement can be changed by Microsoft by providing Company with 30 days advance notice pursuant to Section 9. If Company does not agree to the revised terms and conditions, Company is required to discontinue its participation in the Incentives and terminate this Agreement as provided herein. Company will be deemed to have accepted any revised terms and conditions by its continued participation in Incentives subsequent to the date such changes take effect. (f) Applicable law. Applicable law, jurisdiction and venue governing the MPN Agreement also governs this Agreement. The choice of jurisdiction and venue does not prevent either party from seeking injunctive relief for a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order. Injunctive relief or enforcement of recognition may be sought in any appropriate jurisdiction. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not govern this Agreement. (g) Attorneys fees. If Microsoft or Company employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys fees, costs and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action. (h) Waiver. Unless otherwise provided for in this Agreement, a party s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy. Page 8 of 8