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Agreement
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1. Definitions.
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1.1 "Description" means a description of any Device,
or POS Software provided by Company to Microsoft.
1.2 "Device" means a Company device or POS Device developed
and intended to run, or for use with, any Product.
1.3 "POS Device" means a Company point of service device
or peripheral developed and intended to run, or for use with any Product and that
has passed Verification Testing
1.4 "POS Software" means Company software applications
for point of service solutions developed and intended to run, or for use with, any
Product and that has passed verification testing.
1.5 "Verification Testing" means the Windows Embedded
POSReady Verification Test administered by Veritest/Lionbridge Technology Inc. to
verify functionality with Product.
1.6 "Image" means any image of a Device, or POS Software
provided by Company to Microsoft, and any and all associated materials, including,
without limitation, any Marks.
1.7 "Materials" means, collectively, the Images, Descriptions,
and Sample Devices.
1.8 "Product" means the Microsoft family of products currently known as
Windows Embedded, or any successor products thereto.
1.9 "Sample Device" means a Device that has been provided
by Company to Microsoft pursuant to this Agreement.
1.10 "Marks" means only those product and service names,
logos, trade dress, trade names, domain names, characters, descriptions and other
trademarks of Company provided by Company to Microsoft, including any of the foregoing
included with or on any Sample Devices.
1.11 "Website" means the Microsoft Windows Embedded website
located at http://www.microsoft.com/windows/embedded or http://www.windowsembeddeddevices.com,
or any successor website thereto.
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2. No Obligation; License Grants and Permissions.
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2.1 The parties acknowledge and agree that Company may, in its discretion, submit
Materials to Microsoft pursuant to this Agreement. However, notwithstanding anything
to the contrary herein: (i) Company is under no obligation to provide any Materials
to Microsoft; and (ii) Microsoft is under no obligation to publicly perform, publish,
display, demonstrate, or otherwise publicize any Materials, whether through the
Website or otherwise.
2.2 Company hereby grants to Microsoft a nonexclusive, royalty-free, fully paid-up,
worldwide license to use, reproduce, publicly perform, publicly display, publish,
and distribute any and all Images and Descriptions through the Website, at events
and tradeshows, in marketing collateral, in videos which will contain the Images
and Descriptions combined with other third party Images and Descriptions and which
will be used for promotional and multimedia testing purposes, and to include such
Images and Descriptions in the searchable Device and POSReady Catalog database available
through the Website. In addition, Company grants Microsoft permission to edit the
Descriptions for content; the foregoing edited Descriptions will be deemed part
of the Descriptions.
2.3 If Company provides any Sample Devices to Microsoft, such Sample Devices are
given to Microsoft at no charge and become Microsoft’s property. Company acknowledges
and agrees that Microsoft can use, publicly perform, publicly display, publish,
and publicly demonstrate such Sample Devices, without limitation, at any event or
conference and in retail store kiosks for promotional purposes.
2.4 Company grants Microsoft permission to create links to Company’s website
from the Website.
2.5 Microsoft may remove any Materials from the Website at any time, in its sole
discretion.
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3. Marks.
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3.1 Subject to the terms of this Agreement, Company grants to Microsoft a royalty-free,
non-exclusive license to use and reproduce the Marks, according to any branding
specifications that may be provided by Company, in connection with the Program.
3.2 Microsoft acknowledges Company’s sole and exclusive ownership of all right,
title and interest in and to the Marks and all associated goodwill. Nothing in this
Agreement or in the parties performance under this Agreement, or that might otherwise
be implied by law, is intended to grant Microsoft any right, title, or interest
in or to the Marks or the associated goodwill, other than the limited license expressly
granted by this Agreement. All use by Microsoft of the Marks will inure solely to
the benefit of Company. Microsoft hereby assigns and agrees to assign in the future
to Company all rights Microsoft may acquire by operation of law or otherwise in
the Marks, including all applications or registrations thereof, along with the goodwill
associated therewith.
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4. Warranty; Indemnity; Exclusion of Certain Damages.
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4.1 Company represents and warrants that (i) Company has full authority to enter
into this Agreement and has all necessary rights in and to the Materials to grant
Microsoft the licenses described in this Agreement; (ii) no additional clearances,
releases or approvals are required for the use of the Materials as authorized hereunder;
and (iii) Microsoft’s use of the Materials, and all intellectual property and proprietary
rights therein as permitted by this Agreement will not infringe any copyright, trademark,
trade secret, patent, or other legal or proprietary right of any third party, or
violate any right of or duty owed to any third party.
4.2 Company agrees to indemnify, defend and hold Microsoft and its successors, officers,
directors and employees harmless from any and all actions, causes of action, claims,
demands, costs, liabilities, expenses, and damages (including attorneys’ fees and
fees of other professionals) arising out of or in connection with any claim which,
taking the claimants allegations to be true, would result in a breach of any of
Company’s warranties set forth in this Agreement. In the event of any such
action, Microsoft shall promptly give Company notice of such claim, and shall provide
reasonable assistance therewith upon Company’s request. Microsoft shall have
the right to employ separate counsel and participate in the defense of any claim
at Microsoft’s expense. Company further acknowledges and agrees that a breach
by Company of any of its representations, warranties or undertakings hereunder will
cause Microsoft irreparable damage which cannot be readily remedied in damages in
an action at law, thereby entitling Microsoft to equitable remedies, costs, and
attorneys’ fees.
4.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MICROSOFT BE LIABLE
FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER
ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE MATERIALS,
OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT,
REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED. THE
FOREGOING EXCLUSION SHALL APPLY EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
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5. Term and Termination.
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5.1 This Agreement will be effective as of the Effective Date and will continue
in effect terminated by either party upon thirty (30) days written notice to the
other.
5.2 Within thirty (30) days of termination of this Agreement, Microsoft will cease
all use of the Materials pursuant to Section 2. Notwithstanding anything to the
contrary herein, Microsoft will have no obligation to return any Sample Devices
to Company at any time.
5.3 Sections 1, 2.1, 3.2, 4, 5.2, 5.3, and 6 will survive termination of this Agreement.
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6. General.
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6.1 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 nonconveniens. Process may be served on either party
in the manner authorized by applicable law or court rule. In any action or suit
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 costs,
including reasonable attorneys’ fees.
6.2 All notices and requests in connection with this Agreement shall be sent to
the following addresses (or to such other address as the party to receive the notice
or request so designates by written notice to the other):
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To Microsoft:
Microsoft Corporation
One Microsoft Way Redmond, WA
98052-6399
To Company:
To the address set forth for Company in the Program Registration Form.
All notices and requests shall be deemed given as of the day they are addressed
as set forth above and (i) deposited in the U.S. mails, postage prepaid, certified
or registered, return receipt requested, with a confirming fax; or (ii) sent by
overnight courier, charges prepaid, with a confirming fax.
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6.3 If for any reason a court of competent jurisdiction finds any provision of this
Agreement, or portion thereof, to be unenforceable, that provision of the Agreement
will be enforced to the maximum extent permissible so as to effect the intent of
the parties, and the remainder of this Agreement will continue in full force and
effect. Failure by either party to enforce any provision of this Agreement will
not be deemed a waiver of future enforcement of that or any other provision. This
Agreement will be interpreted fairly in accordance with its terms and without any
strict construction in favor of or against either party.
6.4 Neither this Agreement, nor any terms and conditions contained herein, shall
be construed as creating a partnership, joint venture, agency relationship or granting
a franchise between the parties.
6.5 This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and merges all prior and contemporaneous 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 Microsoft by their respective
duly authorized representatives.
6.6 Clicking on the "I Agree" button creates a legally binding agreement
between Microsoft and Company, and binds Company to all terms and conditions of
this Agreement. Do not click "I Agree" if you are not authorized to bind
Company, or if Company does not agree to all terms and conditions of this Agreement.
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