Microsoft I-Cafe Marketing Agreement


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A copy of the marketing agreement that an i-café owner must enter into with Microsoft if they avail of the I-Cafe Program of the company

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Microsoft I-Cafe Marketing Agreement

  1. 1. MARKETING AGREEMENT This Marketing Agreement (“Agreement”), by and between ______________________________ (“Participant”), a company having its registered office at ______________________________ and ______________________________ (“Microsoft”), a company having its registered office at ______________________________, is entered into as of __________________200_ (the “Effective Date”). RECITALS Microsoft has a licensing program and marketing campaign that is designed to provide Internet Café customers affordable, convenient access to Microsoft technologies and educate them about the technologies’ value. Participant has entered into a Microsoft iCafe Rental Agreement (“Rental Agreement”) with Microsoft to allow it to offer Microsoft Products (as defined in the Rental Agreement) to its customer and now wishes to enter into this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises as stated herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. TERM AND TERMINATION a. Term. The term of this Agreement will start on the Effective Date and end one year from the Effective Date unless terminated earlier by either party in accordance with Section 1.b. b. Termination 1) Microsoft may terminate this Agreement at any time, without cause and without the intervention of the courts, on the delivery of 30 calendar days prior written notice. Microsoft shall not be responsible to Participant for any costs or damages resulting from the termination of this Agreement. 2) Without limiting or waiving any other rights or remedies that are available in law or equity, either party may terminate this Agreement immediately for cause upon 30 days prior written notice in the event the other party is in breach of this Agreement and fails to cure the default within the 30-day period following notice. Any notice of default hereunder shall be prominently labeled “NOTICE OF BREACH OF CONTRACT.” 3) Without limiting or waiving any other rights or remedies that are available in law or equity, either party may terminate this Agreement immediately, without prior written notice, in the event of a material breach of the confidentiality provisions of Section 4 or infringement of the party’s intellectual property rights. c. Survival. Sections 4, 5, and 6 will survive expiration or termination of this Agreement for any reason. d. Audit Provision. Microsoft or a designated third party may periodically audit Participant’s premises and participating PCs to verify compliance with this Agreement. Microsoft may request an audit at anytime during the term of this iCafe Marketing Agreement (Eng)(March 2008)
  2. 2. Agreement and for one year after the end of this Agreement. The audit may include verification that Microsoft-provided marketing materials are displayed in public areas of Participant’s iCafe premises and that participating PCs comply with the “Participant Obligations” section of this Agreement including the setting and maintenance of required default settings. The audit will take place during regular business hours unless previously arranged and Participant must take reasonable effort to make all participating PCs available for the auditors. Auditors will take reasonable measures not to interfere with Participant’s normal course of business. Microsoft will pay the costs associated with the audit. However, if the audit reveals a material breach of the “Participant Obligations” in this Agreement, Participant agrees to pay all costs associated with the audit and to immediately become compliant per the terms of this Agreement or Microsoft may choose to terminate this Agreement according to the “Termination” section. 2. PARTICIPANT OBLIGATIONS Within 30 days of the Effective Date, Participant agrees to: a. Install and set, either manually as instructed in the “PC Defaults Manual Settings” document or by using the “Microsoft PC Settings for Internet Cafes” CD, the most current version of the Windows Live toolbar as the default toolbar, via the URL on all participating PCs. b. Install and set, either manually as instructed in the “PC Defaults Manual Settings” document or by using the “Microsoft PC Settings for Internet Cafes” CD, the most current version of the Windows Media Player as the default media player on all participating PCs. c. Set and maintain, either manually as instructed in the “PC Defaults Manual Settings” document or by using the “Microsoft PC Settings for Internet Cafes” CD, Windows Live search as the default search engine, via the URL on the browser on the desktops of all participating PCs. d. Set and maintain, either manually as instructed in the “PC Defaults Manual Settings” document or by using the “Microsoft PC Settings for Internet Cafes” CD, the following desktop icons on all participating PCs: • Search the Internet (opens the browser to • Get email (opens the browser to ( • Instant Message (opens the browser to • Create a blog (opens the browser to • Get a Windows Live ID (opens the browser to e. Set and maintain, either manually as instructed in the “PC Defaults Manual Settings” document or by using the “Microsoft PC Settings for Internet Cafes” CD, the browser on all participating PCs to include: Default home page: ( Search the Internet ( Get email ( iCafe Marketing Agreement (Eng)(March 2008)
  3. 3. MSN ( Office Online ( Visual Studio ( Silverlight ( XNA Game Design ( Local country settings (tbd and unique to each market) f. Participant acknowledges that the corresponding marketing collateral may not be ready within the above-referenced 30 days following the Effective Date of this Agreement. Therefore, Participant agrees to display, within 14 days of receipt of the materials, all marketing collateral, including posters, monitor toppers and mouse pads for the term of this Agreement, as approved, provided and refreshed from time to time by Microsoft, which advertise genuine Microsoft software in Participant’s Internet Café premises (collectively, “Marketing Collateral”). g. Install and deploy the Internet Café “Software Summary Tool” on all Participating PCs. This tool summarizes the frequency and duration of applications used by referencing .exe files. This information is sent to a server where it is aggregated. Absolutely no personal or company information is collected as part of this software. Participant acknowledges that the “Software Summary Tool” may not be ready for installation within the above- referenced 30 days following the Effective Date of this Agreement. Therefore, Participant agrees to install and deploy the software on all participating PCs within 14 days of receipt. 3. MICROSOFT OBLIGATIONS Microsoft agrees to approve, provide and refresh from time to time, the “PC Defaults Manual Settings” document, the “Microsoft PC Settings for Internet Cafes” CD, the Internet Café “Software Summary Tool” and the Marketing Collateral. 4. CONFIDENTIALITY a. Confidential Information. Except as otherwise specified herein, each party expressly undertakes to retain in confidence all information transmitted to it by or on behalf of the disclosing party pursuant to this Agreement, or information that the disclosing party identifies as being 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, and will make no use of such information except under the terms and during the existence of this Agreement (“Confidential Information”). The terms of this Agreement are Confidential Information. The receiving party’s obligation hereunder shall extend for five (5) years following the disclosure of the Confidential Information. b. Exclusion. Confidential Information shall not include any information that: (i) is at the time of disclosure or subsequently becomes publicly available without the receiving party’s breach of any obligations owed the disclosing party; (ii) became known to the receiving party prior to the disclosing party’s disclosure of such information to the receiving party; (iii) became known to the receiving party from a source other than the disclosing party other than by the iCafe Marketing Agreement (Eng)(March 2008)
  4. 4. breach of an obligation of confidentiality owed to the disclosing party; (iv) is independently developed by the receiving party; or (v) is ordered disclosed by a court of competent jurisdiction, so long as the disclosing party gives reasonable notice to the other party prior to such disclosure and agrees to be bound by the terms of any protective order concerning such information issued in favor of the other party. 5. LIMITATION OF LIABILITY EXCEPT WITH RESPECT TO LIABILITY ARISING UNDER SECTION 4, OR THROUGH INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, OR THEIR RESPECTIVE SUPPLIERS, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. GENERAL a. Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are received either by messenger, delivery service, or mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: To Participant: To Microsoft: Company Name Company Name Street Address Street Address City City State/Province State/Province Attention: Phone: Fax: Copy to: Law & Corporate Affairs b. Dispute Resolution. If Microsoft brings an action to enforce this Agreement (including any other agreement incorporating these terms), Microsoft will bring it in the jurisdiction where Participant is headquartered. If Participant brings an action to enforce this Agreement, Participant will bring it in the State of Washington, USA. This choice of jurisdiction does not prevent either party iCafe Marketing Agreement (Eng)(March 2008)
  5. 5. from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. c. Applicable Law. This Agreement will be governed by the laws of the State of Washington, USA and federal laws of the United States. The 1980 United Nations Convention on Contracts for the International Sales of Goods and its related instruments will not apply to this Agreement. d. Relationship between Parties. Neither this Agreement as a whole nor any specific term or condition will be interpreted as creating a partnership, joint venture, agency or franchise relationship between the parties. e. Severability. If a court holds any provision of this Agreement to be 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. f. Assignment. Participant may assign this Agreement (or Participant’s rights or obligations under it) only with Microsoft’s prior written consent. This requirement applies to assignments that result by operation of law in addition to voluntary transfers. Participant’s assignment will not relieve Participant of its obligations under this Agreement. Participant must notify Microsoft in writing of any assignment to an affiliate within 30 days after the assignment. Microsoft may assign this Agreement (or Microsoft’s rights or obligations under it) to any affiliate without Participant’s consent. Any assignment that violates this section is void. g. No Waiver. No waiver of any breach of this Agreement shall be a waiver of any other breach and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. h. Third-Party Beneficiaries. Microsoft’s affiliates are intended beneficiaries of this Agreement. As a result, Microsoft and its affiliates are entitled to enforce the terms of this Agreement. i. Entire Agreement. This Agreement constitutes the entire agreement between the parties. This Agreement can be changed only by an amendment signed by both parties or otherwise provided in this Agreement. IN WITNESS WHEREOF, Microsoft and Participant have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. MICROSOFT PARTICIPANT By By Name (Print) Name (Print) Title Title Date Date iCafe Marketing Agreement (Eng)(March 2008)