Terms & Conditions

Microsoft Marketing Services for Partners Terms and Conditions

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The Microsoft Marketing Services for Partners (the "Program") encompasses two underlying services (Custom Collateral Tool and MBS Turnkey) as defined in Section 9 under Program Services.

ELIGIBILITY

1. The Program is open to all Registered, Certified and Gold Certified partners enrolled in the Microsoft Partner Program in the United States and Canada and Authorized Education Resellers ("Participants"). Resellers are those companies or individuals, located within the United States and Canada, who distribute Microsoft software or hardware to end-users in compliance with all appropriate Microsoft agreements (Managed Large Account Resellers, Managed Direct Market Resellers and Managed Retail accounts who receive rebates are not currently eligible for this program). Certified Partners are those companies or individuals located within the United States or Canada, who are currently enrolled in the Microsoft Certified partner program. Education Resellers are those companies or individuals located within the United States or Canada, who are currently enrolled in the Microsoft Authorized Education Reseller program.

2. For United States-based resellers only: Certain marketing campaigns may be made available to the Reseller Participants in the United States. Reseller Participants in the United States are divided into two tiers:

(a) Tier 1 Participant may qualify for certain marketing campaigns (as determined solely by Microsoft or its suppliers) if it has distributed Microsoft software and hardware in the aggregate sum of $250,000 or more in the Microsoft fiscal year prior to its initial participation in the Program.

(b) Tier 2 Participant may qualify for the same, or different, marketing campaigns (as determined solely by Microsoft or its suppliers) if it has distributed Microsoft software and hardware in an aggregate sum that is between $249,999 and $50,000 in the Microsoft fiscal year prior to its initial participation in the Program.

(c) At the beginning of each fiscal year, Participant must re-qualify in order to continue their participation in the Program.

(d) The aggregate sum identified in Sections 2(a) and 2(b) above will be calculated by totaling the number of software licenses or hardware units Participant acquired from an authorized Microsoft Distributor (from June 1 through May 31), and multiplying the total by the corresponding royalty or price that was charged to the authorized Microsoft Distributor.

3. To qualify as a Tier 1 or Tier 2 Participant, the revenue figures identified above must be reached through the distribution of Microsoft software and hardware obtained from an authorized Microsoft Distributor. For a comprehensive list of qualifying distributors see: http://members.microsoft.com/partner/usa/licensing/distributors/

4. The specific terms and conditions that govern the use of each individual marketing campaign will be described in a separate online agreement.

5. If Microsoft Corporation ("Microsoft"), or its affiliates or suppliers, establish a Program access account for use by Participant, Participant agrees to comply with all of the terms and conditions contained in this agreement.

PROGRAM ACCESS ACCOUNT

6. A Participant shall not disclose his/her password to any other person or entity, and agrees to immediately notify Microsoft in the event of any unauthorized disclosure of his/her password.

7. A Participant agrees to remain within the authorized capabilities of his/her account.

8. Microsoft may immediately terminate the Program account privileges of any Participant who attempts to gain unauthorized access into another person's account or any restricted area of the Program.

PROGRAM SERVICES

9(a) Custom Collateral Tool:

Microsoft will provide the Participant with a template advertisement, and as appropriate, an advertisement customization form. For customizable pieces, the Participant will input his/her company name, contact information and special offer, if applicable, in the form provided, and upload any logo to be inserted into the advertisement. Microsoft will prepare (according to the specific quantity ordered) a customized direct mail or e-mail advertisement ("CCT Direct Mail") for the Participant. In the case of a letter, Participant may send it on Participant letterhead. Participant will have the option of uploading its customer contact information into the advertisement customization form so that Microsoft may distribute the CCT Direct Mail on Participant�s behalf (collectively the "CCT Program Services"). Except as specified in this Section 9(a), Participant agrees that it will not alter the text of the templates provided under the CCT Program Services in any way.

Portions of the CCT Program Services will be available, in Microsoft�s sole discretion, at a discount or at no charge to a limited number of Participants, and will be delivered to those participants who fill out the advertisement customization form first, until availability has been exhausted. For example, if a CCT Direct Mail promotion is offered, but is limited to 200 Participants, the first 200 to submit their form will be able to participate in the offer. Participant will receive reasonable notice when a CCT Direct Mail promotion is limited.

9(b) MBS Turnkey:

Microsoft will provide the Participant with a template advertisement, and as appropriate, an advertisement customization form. For customizable pieces, the Participant will input his/her company name, contact information, privacy language as described in Section 14 of these Terms & Conditions, and copyright notice, and upload any logo(s) to be inserted into the advertisement in the form provided. Microsoft will prepare (according to the specific quantity ordered) a customized direct mail advertisement ("MBS Turnkey Direct Mail") for the Participant. Participant will have the option of one or both of the following so that Microsoft may distribute the MBS Turnkey Direct Mail on Participant�s behalf: i) providing its own mailing list or, ii) requesting Microsoft to rent a third party list. The MBS Turnkey Direct Mail will include an offer determined and pre-populated in the MBS Turnkey Direct Mail by Microsoft (example of an offer is a white paper).

A vendor working on behalf of Microsoft will (i) host a Participant-branded Web site used for accepting respondent information from customers who wish to request the offer (�Turnkey Site�), (ii) distribute the MBS Turnkey Direct Mail, (iii) collect respondent information from customers requesting the offer (via phone, fax, mail, and Turnkey Site), (iv) send out the requested fulfillment piece, (v) qualify the respondent through telemarketing, and (vi) provide respondent information to Participant (collectively, the �MBS Turnkey Program Services�). Microsoft will not have access to the lists used for the MBS Turnkey Direct Mail nor any access to the respondents� personally identifiable information. The Participant will be provided a mechanism to access the respondent information and may follow-up with the respondent as deemed appropriate by Participant.

Participant will be required to provide its privacy statement, logo, and copyright notice to Microsoft for the Turnkey Site via a Turnkey Site customization form.

Microsoft will provide the Terms of Use for the Turnkey Site and may update such Terms of Use from time to time. Participation in the MBS Turnkey Program Services constitutes Participant�s agreement that Microsoft may provide such Terms of Use for the Turnkey Site. Participant will provide its copyright notice and contact information to be used in the Terms of Use for the Turnkey Site.

Portions of the MBS Turnkey Program Services may be available at a reduced charge to a limited number of Participants, and will be delivered to those participants who fill out the advertisement customization form first, until availability has been exhausted. For example, if a Direct Mail promotion is offered, but is limited to 200 Participants, the first 200 to submit their form will be able to participate in the offer. Participant will receive reasonable notice when a Direct Mail promotion is limited.

9(c) The CCT Program Services and MBS Turnkey Program Services will be collectively referred to hereinafter as the �Program Services�. The CCT Direct Mail and MBS Turnkey Direct Mail will be collectively referred to hereinafter as the �Direct Mail�.

9(d) The Program Services and Direct Mail communications must come from the Participant and be in the Participant�s �voice,� not Microsoft�s:

Example: �As a Microsoft Certified Partner, [Participant Name] is pleased to invite you to the Microsoft CRM Event.� [include further information about the event]

Participant may not use any Microsoft trademarks in the communication, except for Microsoft Partner Program trademarks which the partner is qualified to use, i.e., Microsoft Certified Partner, Microsoft Gold Certified Partner. Participant must include a placeholder for the Participant�s unsubscribe language.

10. Microsoft has final approval over the form and content of the Direct Mail to ensure at a minimum that it conforms to Microsoft marketing and branding guidelines and complies with the terms and conditions of this agreement.

11. Participant authorizes Microsoft and its suppliers to include its name, logos, and any other trademark or copyright information provided by Participant. If the use of such name, logos or other trademark and copyright information is subject to Participant�s trademark guidelines, Participant must provide those guidelines in the advertisement customization form, or include a URL address where the guidelines can be accessed by Microsoft or its suppliers.

MARKETING CAMPAIGNS & PAYMENT

12. Microsoft will pay for specifically designated direct mail campaigns for a limited number of Participants, up to a specific number of direct mail pieces per Participant (see terms and conditions addendums for complete details). Participants are responsible for paying for any number of direct mail pieces above and beyond the quantity Microsoft has agreed to pay for.

13. Accepted payment methods include Master Card, American Express and Visa credit cards.

PARTICIPANT WARRANTIES

14. The Participant warrants that:

(a) The Participant's access to and use of the Program Services will not violate any agreement or obligation between the Participant and a third party;

(b) Prior to distributing any Direct Mail (or requesting that Microsoft or its supplier distribute any Direct Mail) to any customer on his/her customer list, the Participant has obtained the customer's consent and complied with all applicable laws, to send such Direct Mail to the customer; and

(c) All collection, use and disclosure of any information about an identifiable individual ("Personal Information") on his/her customer lists has been performed in accordance with all applicable laws and regulations. In particular, the Participant has only collected Personal Information with customers' prior knowledge and informed consent for those purposes, which are specifically identified and reasonable ("Identified Purposes"). All of the Participant's use of customers' Personal Information has been and will be in accordance with Identified Purposes. The Participant has not disclosed any customer's Personal Information to any third party except with the customer's prior consent.

(d) The Participant will provide contact information in any Direct Mail for purposes of allowing customers to notify the Participant that they wish to withdraw their consent to receive Direct Mail from the Participant and/or Microsoft and its suppliers. Upon receiving such notice, the Participant will notify Microsoft and its suppliers that no additional Direct Mail should be distributed to such customer. The Participant agrees that it will not directly or indirectly distribute any additional Direct Mail to customers that have provided notice of their withdrawal of consent to the Participant and/or Microsoft and its suppliers.

(e) That no Personal Information, customer list nor any other information that Participant provides to Microsoft and its suppliers during the period of the Program constitutes a "consumer report" or "investigative consumer report" under the Fair Credit Reporting Act, 15 U.S.C. �1681a(d), (e).

(f) That Participant and none of its shareholders, partners, members, directors, officers, employees, agents or other representatives are not now and will not be during the period of the Program a "credit reporting agency" under the Fair Credit Reporting Act, 15 U.S.C. �1681a(f).

(g) That Participant�s privacy statement as provided by Participant for the Turnkey Site will comply with all applicable laws and regulations, industry-standard privacy guidelines and practices including, without limitation, guidelines and practices recommended by the Better Business Bureau Online (BBB Online), Online Privacy Alliance or TRUSTe.

(h) That Participant will protect all Personal Information collected in connection with the Program Services from unauthorized use, access, disclosure, destruction or alteration.

(i) That Participant will use all Personal Information collected in connection with the Program Services in accordance with all applicable laws and regulations and industry standards for data protection.

PARTICIPANT OBLIGATIONS

15. The Participant's use of the Program Services and distribution of Direct Mail will comply with all applicable laws and regulations. Without limiting the generality of the foregoing, the Participant agrees that all collection, use and disclosure of Personal Information in association with the Program will be in compliance with all applicable laws and regulations, including the specific requirements outlined in Section 14 above.

16. The Participant agrees to follow all Microsoft policies, guidelines and directives regarding the protection of privacy rights, as provided on the Program Web site, or as provided from time to time by Microsoft or its suppliers.

17. The Participant agrees to provide to Microsoft only that information which is specifically requested in the Program advertisement customization form and Turnkey Site customization form.

18. The Participant will not alter or attempt to alter the Direct Mail advertisements, except as expressly provided for in these Terms and Conditions. The Participant will not include any representations, warranties or guarantees of any kind with the Direct Mail advertisements. Without limiting the generality of the foregoing, the Participant agrees not to include any representations regarding Microsoft software and hardware prices in or with the Direct Mail.

INTELLECTUAL PROPERTY RIGHTS

19. Microsoft grants to the Participant a non-exclusive, revocable license to use the Direct Mail solely for the purpose of promoting Microsoft software and hardware. This agreement does not grant the Participant any right, title, interest, or license in or to any of Microsoft or Microsoft Corporation's names, word marks, logos, logotypes, trade dress, designs, or other trademarks. Participant shall not make any modifications to any trademarks or logos of Microsoft included in the Direct Mail as provided by Microsoft.

NON-DISCLOSURE PROVISIONS

20. In consideration of Microsoft's grant of Program account privileges and the Program Services, the Participant agrees that, at all times during his/her participation in the Program and thereafter, the Participant expressly undertakes to retain in strictest confidence and agrees not to use for any purpose other than his/her business association with Microsoft, nor disclose to anyone outside of Microsoft without the express written authorization of an officer of Microsoft, any confidential or proprietary information of Microsoft and/or its suppliers, including but not limited to:

(a) data, concepts, techniques, processes, designs, circuits, cost information, computer programs, formulas, development or experimental work, work in progress, and other technical know-how, financial, marketing and other business information, or any other trade secrets of Microsoft disclosed to the Participant by Microsoft or obtained by the Participant through observation or examination of Microsoft operations, customers or suppliers, including the identity of such customers or suppliers; and

(b) any information Microsoft has received from others that Microsoft is obligated to treat as confidential or proprietary. If the Participant has any questions as to what comprises such confidential or proprietary information, the Participant agrees to consult with Microsoft. The information protected by this Section includes all information and know-how transmitted to the Participant by Microsoft that Microsoft has designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential.

LIMITATION OF LIABILITY

21. Microsoft and its affiliates, successors, officers, directors, employees, and suppliers assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction to or unauthorized alteration of the content form or any electronically transmitted information in furtherance of the Program. Microsoft is not responsible for (i) any problems or technical malfunctions of any telephone network or lines, computer on-line systems, servers, or providers, computer equipment, software; or, (ii) the failure of any e-mail to be received by Microsoft on account of technical problems or traffic congestion on the Internet or at the Program web site.

22. Microsoft, and its affiliates, successors, officers, directors, employees, and suppliers make no representation about the suitability, reliability, availability, timeliness, and accuracy of the Direct Mail content for any purpose. All such content is delivered or provided "as is" without warranty of any kind. Microsoft and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this content, including all implied warranties and conditions of merchantable quality, fitness for a particular purpose, title and non-infringement.

23. In no event shall Microsoft, or its affiliates, successors, officers, directors, employees, or suppliers be liable for any indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Program Services, with the delay or inability to use the Program Services, the provision of or failure to provide Program Services, or for any Direct Mail obtained through the Program Services, or otherwise arising out of the use of the Program Services, whether based on contract, tort, negligence, strict liability or otherwise, even if Microsoft or any of its suppliers has been advised of the possibility of such damages. If the Participant is dissatisfied with any portion of the Program Services, or with any of these terms and conditions, the Participant's sole and exclusive remedy is to discontinue using the Program Services.

INDEMNITY

24. The Participant agrees to indemnify, pay the defense costs of, and hold Microsoft, and its affiliates, successors, officers, directors, employees, and suppliers harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages (including legal fees) arising out of, or in connection with (i) the Participant's use of the Program Services, (ii) any claim or complaint relating to the violation of any person's privacy rights, (iii) any other claim arising out or of or relating breach of the Participant's warranties and/or obligations as set forth in this agreement, or (iv) any claim or complaint relating to any special offer that Participant includes in the CCT Direct Mail.

TERMINATION

25. Microsoft reserves the right, in its sole discretion, to terminate the Participant's access to and use of the Program Services without cause upon ten (10) business days written notice. In the event of a breach of the obligations under Sections 6, 7, 8, 14, 15, 16, 17, 18, 19, or 20, Microsoft shall have the right to terminate the Participant's access to and use of the Program Services immediately upon written notice to the Participant.

26. Microsoft may vary or cancel the Program at any time, at its sole discretion, upon reasonable notice, which shall be posted on the Program web site.

27. In the event of termination of this agreement for any reason, Sections 14, 19, 20, 21, 22, 23. 24, 26, 27, 28, 29, 30, 31, 32, and 33 shall survive termination.

GENERAL

28. Governing Law/Jurisdiction/Attorneys' Fees. This agreement shall be construed and controlled by the laws of the State of Washington, and Company consents to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal subject matter jurisdiction exists, in which case Company consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this agreement or to interpret any provision of this agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.

29. The Participant agrees that no joint venture, partnership, employment, or agency relationship exists between the Participant and Microsoft as a result of this agreement or use of the Program Services.

30. Microsoft may assign this agreement, in whole or in part, at any time. Microsoft's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Microsoft's right to comply with governmental, court and law enforcement requests or requirements relating to the Participant's use of the Program Services or information provided to or gathered by Microsoft with respect to such use.

31. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this agreement shall continue in effect.

32. This agreement constitutes the entire agreement between the Participant and Microsoft with respect to the Program Services and such agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Participant and Microsoft with respect to the Program Services. A printed version of this agreement and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

33. Microsoft reserves all rights not expressly granted herein.

BY CLICKING ACCEPT, YOU:

i) Warrant that all information provided by you on any Web site containing
all or part of this agreement is accurate, and that you are an officer,
employee or agent duly authorized to act for Participant;

ii) Consent, on behalf of Participant, to this agreement acknowledging
(a) that you have reviewed the agreement and the addendums
(b) that you are aware of and agree on behalf of Participant to provisions
requiring certain transactions or notices to be conducted
or provided electronically; and

iii) Evidence Participant�s intent to sign this agreement, to provide a symbol
of its signature, and to be legally bound by this agreement.

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