agreement for microsoft windows server 2008

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agreement for microsoft windows server 2008 Powered By Docstoc

Microsoft Corporation and Wipro Limited (“Wipro”), a company registered under the
Indian Companies Act, 1913 and existing under the Companies Act, 1956, have entered
into an agreement whereby Microsoft has authorized Wipro to test software-based
products of independent software companies on the terms set forth in this Agreement.
This Platform Test is being done to assist Microsoft in determining the suitability of
inclusion of “Company” (as defined below) in testing and reviewing the results of the
Company's software which is tested on a Foundation and an elective component

This Agreement will be a binding agreement between company and Wipro and constitute
the entire terms and conditions upon which Wipro will perform the Platform Test of
Company’s software.

1. Company Information.

The term “Company” shall mean the entity that enters into this Agreement with Wipro.
Information concerning Company and Software (as defined below) will be entered by
Company in this Agreement and Company warrants that such information will be
accurate to the best knowledge of Company.

2. Software.

The term “Software” shall mean Company’s software application or the required
submission package that is the subject of the test by Wipro.

3. Test Report.

Upon Wipro’s completion of Platform Test of software submitted under this Agreement,
Wipro will prepare a report (a “Test Report”), reporting the results of such Software
package as pass or fail. The Test Report shall be sent by way of e-mail or any other
means of written communication. Achieving any particular grade or result will not ensure
that Microsoft will grant to Company any right to use the Logo(s) or any other trademark
of Microsoft.

4. Test Period.

Wipro will use commercially reasonable efforts to complete Platform Test of such
Software and to deliver a Test Report to Company and to Microsoft, within the Period.
The Period shall be defined by Wipro for each case .This Period will be extended on the
occurrence of any failure of the Software or Company Equipment, or for any event
described in Section 7 hereof. For Software in any language other than English, this
Period may be extended. After Wipro releases the tests results as set forth in this
Agreement, Company agrees that Wipro will have no responsibility with respect to their
use or further disclosure, whether by Company, Microsoft or third parties.

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5. Limitation of Liability and Warranty.

Wipro’s entire liability and Company’s exclusive remedy for any error by Wipro in the
Platform Test of any particular Software performed under this Agreement or for any
other claim against Wipro based directly or indirectly on this Agreement shall be for
Wipro, in its sole discretion, to either: (a) refund the fee paid by Company to Wipro for
the Platform Test of Software, or (b) perform a resubmission of the Software which is the
subject of Company’s claim. No result set forth in any test report, and no statement of
Wipro, whether written or oral, shall be deemed to be or construed as a warranty that any
of the software or any Company equipment is compatible with any operating system,
hardware, or third party software product or any Microsoft products. Wipro expressly
disclaims all warranties, whether express or implied, including but not limited to
warranties of design, merchantability, or fitness for a particular purpose, with respect to
the services to be performed by Wipro under this Agreement, the results of such services,
and the use, disclosure, or publication by any party of such results (including but not
limited to the Test Report).

Except as expressly set forth herein, Wipro shall not be liable for any damages
whatsoever including but not limited to consequential, incidental, indirect, punitive or
special damages arising out of this agreement or the transactions contemplated under this
Agreement, including but not limited to the services performed by Wipro under this
Agreement or any use, disclosure, or publication of the results of such services, even if
Wipro has been advised of the likelihood of such damages occurring. In no event shall
Wipro’s liability arising under this Agreement exceed the fee paid by Company to Wipro
under the Agreement for Platform Test the particular software which is the subject of
Company’s claim.

6. Indemnification.

Company shall indemnify, defend and hold Wipro harmless from and against any and all
losses, damages, liabilities, costs and expenses (including attorneys’ fees) resulting from
or arising out of any use, disclosure, or publication by Company, Microsoft or any third
party of the results of any services (including but not limited to the Test Report)
performed by Wipro under this Agreement except to the extent that such losses, damages,
liabilities, costs and expenses are directly attributable to the gross negligence or willful
misconduct of Wipro. Company understands and agrees that Microsoft has no obligation
under this Agreement to indemnify Company or to warrant Company’s products.

7. Force Majeure.

Wipro shall not be liable in any way because of any delay or failure in performance due
to a force majeure event or any cause beyond Wipro’s control, including, without
limitation, strike, lockout, riot, war, fire, earthquake, accident, failure or breakdown of
components necessary to carry out Platform Test, Microsoft or Company caused delays,

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or compliance with any law, regulation or order of any government body, agency or any
instrumentality thereof.
If an event of Force Majeure results in delay or non-performance of a Party for a period
of one (1) month or longer, then either Party shall have the right to terminate this
Agreement with immediate effect without liability towards the other Party. If, during the
Test Period, Microsoft for any reason suspends or terminates Wipro’s authorization to
perform software Platform Test on behalf of Microsoft, then Wipro shall not be obligated
to complete any Platform Test on any Software, and Wipro’s sole liability to Company
shall be to pay, and Company's sole remedy shall be to receive, a refund of any fee paid
by Company to Wipro under the respective agreement for the particular Software which
is the subject of Company's claim.

8. Grant of License to Wipro.

Company hereby grants to Wipro a non-exclusive, royalty-free license to use all
Software, all Company Equipment, and any user documentation provided by Company,
for Platform Test purposes within the Wipro lab and as set forth in this Agreement.
Company represents and warrants that it has all rights and licenses necessary to grant the
license in this Section to Wipro. Wipro will use the Software, any Company Equipment,
and any user documentation in accordance with this license, and will not seek title, sell or
otherwise use the Software or Company Equipment for any other purpose, unless
authorized by Company in writing. Except as expressly set forth in this Agreement, any
reviewing of any Software conducted pursuant to this Agreement shall only apply to the
Software submitted by the Company and to no other version of such Software and to no
other product. Section 5 of this Agreement does not apply to the license grant provided in
this Section 8. Except as expressly provided in this Section 8, Wipro’s use of the
Software is controlled by the end user license agreement that accompanies the Software.
 Upon the earliest of completion of the test requested by Company, termination or
expiration of this Agreement, or upon Company’s notice, the license grant provided in
this Section 8 shall expire and Wipro shall promptly destroy or return the Software.

9. Resubmission / Test Upgrades.

a. Resubmission
Should the Software not receive a favorable result on initial test, or if a partial recheck of
the Software is required, Company may request a resubmission of the Software under the
terms of the Agreement. In the event that Company decided to go for a recheck,
Company must send a request for recheck to Wipro by post or email. Requests for
rechecks are not deemed to be accepted by Wipro until Wipro sends a confirmation to
Company by email or fax. Current fees for rechecks can be obtained from Wipro. All
rechecks are considered to be tests under the terms of this Agreement and must be pre-

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b. Test Upgrades
Company may request Wipro for testing the Software on additional resubmissions
during/after Platform Test of the application. In such a condition, the list of additional
resubmissions and applicable fees shall be obtained from Wipro.

10. Fee.

A non-refundable fee in the applicable amount set forth in the fee schedule as
communicated by Wipro for the appropriate Platform Test/re submissions must
accompany this Agreement. Payment information shall be entered electronically by
Company on internet-based forms or otherwise as communicated by Wipro. Company
hereby agrees and acknowledges that it is not entitled to claim any approvals with regards
to Microsoft on successful completion of Platform Test. In the event that Microsoft
sponsors Company and provides promotional vouchers to the Company by issuing the
relevant written authorization, then Company shall submit such authorization to Wipro at
the time of payment, as mentioned in this section. If a promotion or subsidy offered by
Microsoft, Company will not be required to pay a fee.

11. Delivery.

Company will deliver the Software and other items as required for the platform test.
Company acknowledges that Test will not begin until all items required are received by
Wipro and acknowledged by Wipro via email.

12. Confidentiality.

(a) “Confidential information” shall mean information disclosed by Company to Wipro
under this Agreement. Any information that Wipro can demonstrate that the: (a) was part
of the public domain at the time of disclosure or properly became part of the public
domain, by publication or otherwise; (b) was rightfully acquired by Wipro prior to
disclosure by Company; (c) was independently developed by Wipro without reference to
the Confidential Information; or (d) is required to be disclosed by a government agency
or by a proper court of competent jurisdiction. Except as noted under Section 12 (b), the
test results and review data obtained from testing the Software pursuant to this
Agreement shall be considered confidential information of Company.

(b) Company authorizes Wipro from time to time consult with Microsoft with respect to
the Software and the test performed pursuant to this Agreement, and to provide Microsoft
with all interim and final test results and notes pertaining to the Software and Company
Equipment (if any), including the Test Report, and this Agreement; and acknowledges
that Microsoft will use, disclose or publish information regarding the Software and
Company Equipment (if any), in Microsoft’s sole discretion, in published compatibility
listings which may include the names and descriptions of software-based products, such
as the Software, tested by Wipro. Further, Company acknowledges that Wipro will be
compiling statistical data relating to its testing programs, which may include Company
data derived from the test performed pursuant to this Agreement, and that Wipro may

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from time to time deliver this statistical data to Microsoft. Company acknowledges that
any such statistical information does not violate any of the nondisclosure provisions of
this Agreement. Such Company data will not expressly or impliedly mention Company’s

13. Governing Law and Dispute Resolution.

This Agreement shall be interpreted and construed in accordance with the laws of the
Republic of India, without regard to its conflicts of laws provisions. Any disputes arising
out of this Agreement will be settled through binding arbitration by a single arbitrator
under the Arbitration and Conciliation Act, 1996.

14. Termination.

This Agreement automatically will terminate upon the completion, abandonment or
termination of the provision of testing. On such termination, Company acknowledges that
Wipro shall have no obligation towards the Company in manner whatsoever. Further,
either party will be able to terminate this Agreement for no reason by providing the other
party with a notice of ten (10) business days.

15. Entire Agreement.

The Agreement, including any appendices, schedules, exhibits, or web-based registration
referred to therein and attached thereto, constitutes the entire agreement between the
Parties with respect to the subject matter contained in the Agreement and supersedes all
prior agreements, whether written or oral, with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT FOR
MICROSOFT Platform Test

Signed for and on behalf of                   Signed for and on behalf of
<Client’s Name>                               Wipro Limited

By                                            By
         (Signature)                          (Signature)

Name (Print)                                  Name (Print)

Title                                         Title

Date                                          Date

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