(a) (b) Authorized Distributor
Contents
1. To sign the agreement Refurbisher shall click the Accept Agreement and Continue button complete the Refurbisher application form including online signature and click Submit and Review By signing Refurbisher evidences its intent to be legally bound by all terms If Refurbisher does not wish to sign click on Cancel2. all notices from Refurbisher must be in writing on Refurbisher letterhead and signed by an authorized representative of Refurbisher Refurbisher Written Notice All notices to MS must be provided to the fax number or email address listed on the Program Web Site for the applicable MS entity b MS must address all notices authorizations and requests related to this agreement to the contact address including physical and email address for legal communications as provided by Refurbisher as part of Program registration on the Program Web Site This contact information can only be changed as provided on the Program Web Site c Notices will be deemed received seven days after any of the following occur 1 For a notice address in the U S A When the notice is deposited in the U S A mails postage prepaid certified or registered return receipt requested 2 For a notice address in a member country of the European Union EU or European Free Trade Association EFTA When the notice is deposited in the EU or EFTA mails prepaid recorded delivery 3 When the notice is sent by air express courier charges prepaid 4 If the notice is by MS regarding updates or changes to MS information instructions or forms Seven days after notice is sent via email or posted on the Program Web Site 5 For fax or email notices sent by Refurbisher Seven days after notice is sent via fax or email 10 SIGNATURE
3. Microsoft software or hardware 9 9 Force Majeure Force Majeure Event means fire casualty or an act caused exclusively by forces of nature riot terrorist act war labour dispute material changes in applicable law or regulation or decree of any court Force Majeure does not include theft Neither party will be liable for failing to perform under this agreement to the extent that a Force Majeure Event caused the failure The party subject to the Force Majeure Event must give the other party notice within a commercially reasonable time As soon as the Force Majeure Event stops the party must perform the obligations that were not performed In no event shall the damage to or destruction or disappearance of COA label s on account of a Force Majeure Event relieve Refurbisher of its payment obligations in connection therewith 9 10 Limitation of Liability The total cumulative liability if any of MS and Refurbisher s exclusive remedy for that liability shall be limited to Refurbisher s direct damages incurred in reasonable reliance upon MS up to an amount not to exceed 100 of the amount having actually been paid by Refurbisher to MS during the three month period preceding such damages under this agreement MS disclaims liability for all lost profits indirect consequential incidental economic special and punitive damages The limitations in this section apply to e the Software and claims of breach of contract e breach of warrant
4. not make any changes to the Product unless expressly permitted in the OPK Refurbisher may not use the OPK as a general operating system product or as a substitute for an operating system product Refurbisher may not distribute the OPK to any Customer or other third party Ordering Software a For Citizenship licenses Refurbisher will access order and pay for all Software through the Program Web Site b For all other licenses Refurbisher will order Software from an Authorized Distributor or such other entity as may be designated by MS from time to time Refurbisher will pay to the Authorized Distributor the costs to acquire the Software 2 4 Installation and Distribution a Refurbisher must complete the following steps prior to distribution of Software with Refurbished PCs 1 confirm that supplied computers meet the definition of a Qualified PC 2 3 4 5 Refurbish each Qualified PC install the Product software on each Qualified PC obtain a Product Key from the Program Web Site provide the Product Key and any applicable APM with the Refurbished PC 6 for Windows 7 Home Premium Windows 7 Professional Windows 8 1 and Windows 8 1 Pro configure the Refurbished PC as described in the Registered Refurbisher Program Guide to present to the Customer the Product License Terms on initial system boot up b Except as specifically authorized in this agreement or another license agree
5. under this Program u Program Guide means the guide containing Program information located on the Program Web Site v w Program Web Site means the web site at http www microsoft com registeredrefurb x y z Qualified Individual means a person 1 In a community with limited access to technology and 2 With a disability or 3 A member of a low income family Examples of ways to identify low income include those i receiving state benefits based on need ii receiving aid from an Intergovernmental Organization IGO iii in a country defined as a low income economy by the World Bank http web worldbank org WBSITE EXTERNAL DATASTATISTICS 0 contentMDK 20420458 menuPK 64133156 pagePK 64133150 piPK 64133175 theSitePK 239419 00 html Qualified PC means a PC that meets the following 1 has been in distribution and used by an end user for at least 6 months 2 to the best of Refurbisher s knowledge contains the same motherboard as originally distributed 3 must have an original valid COA for a Windows operating system product affixed to the PC unless otherwise stated in Section 2 below and 4 must be i refurbished for new owners and ii either owned by Refurbisher during the Refurbish process or the Refurbisher has a contractual relationship with a third party to Refurbish the PC Refurbisher must use commercially reasonable efforts to determine w
6. MICROSOFT REGISTERED REFURBISHER PROGRAM AGREEMENT Version 4 0 This agreement is between Refurbisher as defined below and Microsoft Licensing GP MSLI a Nevada corporation unless i Refurbisher is located in Europe Africa or the Middle East in which case this agreement is between Refurbisher and Microsoft Ireland Operations Limited MIOL a company organized under the laws of Ireland or ii Refurbisher is located in China in which case this agreement is between Refurbisher and Microsoft China Company Limited MCCL MSLI MIOL and MCCL as applicable to Refurbisher are each referred to as MS for purposes of this agreement The terms we our or Microsoft are used below to mean either MSLI MIOL or MCCL as appropriate 1 DEFINITIONS a APM means associated product materials MS designates as a part of the Product Examples of APM include the End User manual and external media b Authorized Distributor means a Distributor that has entered into a Microsoft OEM Distributor Channel Agreement with MS to distribute the Product in connection with the Program and which is identified on the MS OEM Distributor list at http www microsoft com oem en pages distributors aspx c Citizenship Licenses means Software licensing rights available only to Eligible Recipients d Citizenship Office Products means Software available only to Eligible Charitable Organizations and Spe
7. ative Regions of Hong Kong and Macau and in designated Special Economic Zones as defined by the government of the PRC see 2 4 e 3 below 2 The Traditional Chinese for Hong Kong B3 language version of a Product may not be preinstalled in or directly or indirectly distributed by or for Refurbisher within or to the PRC However the B3 language version may be preinstalled in or directly or indirectly distributed by or for Company within or to Hong Kong and Macau and the B3 language version may be preinstalled in the designated Special Economic Zones as defined by the government of the PRC subject to 2 4 e 3 3 The B3 and ZH language versions may be preinstalled in Refurbisher s manufacturing facilities within Special Economic Zones of the PRC as defined by the government of the PRC but only if e such preinstallation is permitted by all applicable laws regulations and rules and e the sole purpose of the preinstallation is to make possible distribution outside the PRC 2 5 Citizenship Licenses a Refurbisher may distribute the Software associated with Citizenship Licenses only to Eligible Recipients b Refurbisher may engage a third party to identify Eligible Recipients and to deliver Refurbished PCs to Eligible Recipients provided that 1 Refurbisher must ensure that such third party complies with the applicable terms of this agreement 2 If Refurbisher becomes aware the third entity is not complying with t
8. b Refurbisher may not license or distribute the server software portion of the Windows Server Software separate from the client access licenses 2 8 End of License Continued Distribution Microsoft Office Basic 2007 and Microsoft Office Home amp Student 2007 are no longer offered through the Program and therefore are not available from the Program Web Site or from an Authorized Distributor Refurbisher may continue to distribute Microsoft Office Basic 2007 and Microsoft Office Home amp Student 2007 that are in its inventory on August 1 2013 until the earlier of the end of this agreement or termination of Refurbisher s right to distribute Microsoft Office Basic 2007 and Microsoft Office Home amp Student 2007 2 9 Excluded License a Excluded License means any license that requires as a condition of use modification or distribution of Software subject to that license that the Software or other software combined and or distributed with such software be i disclosed or distributed in source code form ii licensed for the purpose of making derivative works or iii redistributable at no charge b License rights to any Software or MS Affiliate intellectual property do not include any license right power or authority to subject the Software or derivative works in whole or in part to any of the terms of an Excluded License c Subject to this agreement Refurbisher may distribute the Software with 1 any software that is
9. ble security precautions at least as great as the precautions it takes to protect its own confidential information but no less than reasonable care to keep confidential the Confidential Information and Refurbisher however may disclose Confidential Information in accordance with a judicial or other governmental order provided Refurbisher either A gives MS reasonable notice prior to such disclosure and to allow MS a reasonable opportunity to seek a protective order or equivalent or B obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation c Confidential Information does not include any information however designated that 1 2 3 4 is or subsequently becomes publicly available without Refurbisher s breach of any obligation owed to MS became known to Refurbisher prior to MS s disclosure of such information to Refurbisher pursuant to the terms of this agreement became known to Refurbisher from a source other than MS other than by the breach of an obligation of confidentiality owed to MS or is independently developed by Refurbisher 6 NO WARRANTIES AND DISCLAIMER OF DAMAGES No Warranty MS provides the Software to Refurbisher on an as is basis with no warranties conditions or guarantees Refurbisher shall provide Software to Customer
10. cially Approved Recipients e COA means a Certificate of Authenticity label f Customer means an individual or legal entity that purchases a Refurbished PC g Eligible Academic Users means 1 Educational institutions that are i accredited academic institutions or ii vocational institutions or iii preschools that A provide educational services to children B serve at least ten children and C have been in operation for at least one year 2 Administrative offices of an educational institution that are i district regional state provincial or national administrative offices ii organized and operated exclusively for administration purposes or iii government groups whose activities primarily consist of providing administrative support for educational institutions 3 Public museums that i are organized primarily for educational or aesthetic purposes ii have a professional or volunteer staff and iii own or use real objects care for them and show them to the public on a regular basis Eligible Academic Users are not eligible for Citizenship Office Products h Eligible Charitable Organization means an organization that is eligible for the Microsoft Software Donation program See http www microsoft com about corporatecitizenship en us nonprofits whos eligible MS may make these requirements available in another place or different form The requirements are subject t
11. d PC and install a recovery image for the Product it preinstalled on that Refurbished PC 1 For Citizenship Licenses Refurbisher may choose not to provide a recovery image ona Refurbished PC in that case the Customer may have the Product image re installed only from Refurbisher or another refurbisher participating in the Program as provided in Section 2 1 d above 2 For all licenses except Citizenship Licenses Refurbisher must supply a recovery image to Customer 3 REFURBISHER COMMITMENTS AND ACKNOWLEDGEMENTS 3 1 Audit Rights a MS or a designated third party may periodically audit Refurbisher s facilities records and books to verify compliance with this agreement MS may request an audit at anytime during the term of this agreement and for a period of one year after the end of this agreement The audit may include a review of the process to verify PCs match the definition of a Qualified PC and the Refurbishment process defined in this agreement The audit will take place during regular business hours Refurbisher must make reasonable efforts to make all records available at one convenient location Auditors will take reasonable measures not to interfere with Refurbisher s normal course of business b MS will pay the costs associated with the audit However if the audit reveals a material breach of the Refurbisher obligations in this agreement Refurbisher agrees to pay all costs associated with the audit and to become compl
12. ed to e refurbishment of Qualified PCs e distribution of Refurbished PCs e breach or alleged breach of this agreement by Refurbisher e negligent act or omission by Refurbisher under this agreement or e claims or allegations resulting from action of Refurbisher affiliates agents or subcontractors If there is an adverse final judgment or settlement to which Refurbisher consents resulting from any Refurbisher Claim Refurbisher will pay it for MS MS will promptly notify Refurbisher of the Refurbisher Claim describing the claim and the relief that the third party seeks MS will give Refurbisher reasonable assistance in defending the Refurbisher Claim Refurbisher must have MS written consent before settling any Refurbisher Claim MS will not unreasonably withhold its consent This indemnity will survive termination or expiration of this agreement 8 LAWS COURTS AND JURISDICTION 8 1 Choice of Law Jurisdiction and Venue a MSLI and MCCL If MS is defined as MSLI and MCCL Washington State law governs this agreement and any claims for breach of them regardless of conflict of laws principles The federal courts in Washington State or New York State are the exclusive venues for all disputes arising from this agreement The state courts of Washington State are the exclusive venue if there is no federal subject matter jurisdiction Each party consents to the exercise of personal jurisdiction by these courts Each party agrees that it canno
13. efurbisher may at its option either mark through or place a sticker of its own design and manufacture over the product key on the pre existing COA Refurbisher must not remove or obscure the serial number on the pre existing COA 2 Office Software i ii For all licenses no pre existing COA for a Microsoft Windows operating system product needs to be affixed for Refurbished PCs For Citizenship Licenses Refurbisher must affix the Program COA to the reverse of the Product Key PDF document that Refurbisher obtains from the Program Web Site iii For all licenses except Citizenship Licenses Refurbisher must affix the Program COA to the Office Software recovery media 3 MS Digital Literacy Curriculum Software No COA is provided Refurbisher does not affix a Program COA for this Software 4 Windows Server Software i ii For server devices no pre existing COA for a Microsoft Windows operating system product needs to be affixed for Refurbished PCs For client devices a pre existing COA for a Microsoft Windows operating system product is required Refurbisher must affix the Program COA to the server device iii Client Access License COAs are provided to Refurbisher on a card and are not affixed to the Refurbished PC instead Refurbisher shall provide the appropriate cards to the end user b Product Keys Refurbisher will be provided Program credentials required to obtain Product Keys to enable activation
14. er name s and password s used for the Program in a secure manner to prevent unauthorized access and use 3 6 Support MS will not provide technical support services for the Software to the Refurbisher or Customer s 3 7 Refurbisher Representations and Warranties Refurbisher represents and warrants to MS that a it is an Eligible Refurbisher and b it has access to the World Wide Web 3 8 Refurbisher Acknowledgements Refurbisher shall not earn or have a right to receive any royalties in connection with this agreement MS does not allow unauthorized duplication and distribution of the Software OPK or any COA 3 9 Public Directory Refurbisher acknowledges and agrees that it will provide its company contact information to MS for posting by MS to a public directory site for purposes of allowing potential customers to locate and contact Refurbisher 4 TERM AND TERMINATION 4 1 Term This agreement is effective from the date MS accepts it as indicated in an email communication from MS to Refurbisher Effective Date through September 30 2014 unless terminated earlier by either party in accordance with this agreement 4 2 Termination a Termination Either party may terminate this agreement with or without cause upon 30 days written notice to the other party MS may terminate this agreement immediately upon notice for Refurbisher s breach of its terms b Refurbisher Responsibility 1 Upon termination or expiration of th
15. for Refurbished Servers together with the Windows MultiPoint Server 2011 Client Access License 5 Device for Refurbished Servers LICENSE 2 1 Grant If Refurbisher complies with the terms of this agreement then Refurbisher has the following non exclusive limited rights 2 2 2 3 a use the OPK to install one copy of the Product software on each Qualified PC b distribute the Product software preinstalled on the Qualified PC with the Program COA affixed c distribute one unit of applicable APM with each Product d for recovery purposes only use the OPK to re install one copy of the Product software that either Refurbisher or another refurbisher participating in the Program installed on a Qualified PC Such reinstallation must be performed by using i the Product Key obtained from the Program Web Site and ii the COA serial number mentioned on the Program COA previously affixed to the Refurbished PC Refurbisher acknowledges that MS retains all copyright patent moral trademark title and other proprietary and intellectual property in the Product and OPK MS reserves all rights not expressly granted herein OPK Use Rights Refurbisher must use the OPK provided in the Pack or otherwise made available by MS and related tools only to preinstall the Product software Refurbisher may use the information tools and materials contained in the OPK solely to preinstall the Product software as provided in the OPK Refurbisher may
16. hese terms the Refurbisher must immediately notify MS and must stop distributing Refurbished PCs to such third party and 3 Refurbisher acknowledges and agrees that it is liable to MS for the third party s actions and omissions 2 6 Installation of Windows Operating System Software Refurbisher may only install Windows Operating System Software in accordance with the following table This section does not apply to Citizenship Licenses Windows XP Starter Windows XP Windows 7 Starter Professional Windows XP Home Windows 7 Edition Windows 7 Professional Home Premium Windows 8 1 Pro Pre existing COA Windows 8 1 No pre existing COA Not Eligible Not Eligible Windows XP Starter Edition Yes Not Eligible Windows Vista Starter Windows 7 Starter Windows 95 Windows 98 Windows Millennium Me Edition Windows XP Home Edition Windows Vista Home Basic Windows Vista Home Premium Windows 7 Home Premium Windows 8 Windows 8 1 Professional Windows Vista Business Windows Vista Ultimate Windows 7 Professional Windows 7 Ultimate Windows 8 Pro Windows 8 1 Pro Windows 2000 Windows XP Yes Yes 2 7 Installation of Windows Server Software a For Citizenship licenses Refurbisher may only install one unit of Windows Server Software per server configuration If additional client access licenses are required the Customer must license and obtain them separately from a source outside the Program
17. hether a PC has been in distribution and used by an end user for at least 6 months Refurbish means to restore a Qualified PC to a functional state where it is suitable for a new owner Upgrading the PC does not include upgrading the central processing unit CPU Refurbisher may upgrade the random access memory RAM and the hard disk drive HDD Faulty motherboards must be replaced with a motherboard of the same specifications as the original Reused hard drives on Qualified PCs must be reformatted in accordance with the Guidelines for Media Sanitization published in the National Institute of Standards and Technology Special Publication 800 88 or similar standard Refurbisher may only refurbish a Qualified PC as part of the Program aa Refurbisher means the entity entering into and accepting this agreement that refurbishes PCs for others and is otherwise eligible to participate in the Program For refurbishes see the definition of Refurbish The online application form is located at the Program Web Site A Refurbisher depending on its country of establishment may only have access to Citizenship licenses bb Refurbished PC means a Qualified PC that has been Refurbished cc Registered Refurbisher Program Guide means the Program guide and its successor versions available during the term of this agreement and which can be downloaded from the Program Web Site dd Specially Approved Recipients mean
18. iant per the terms of this agreement or MS may choose to terminate this agreement according to the Termination section 3 2 Compliance with Law Refurbisher agrees to comply with all local state national and international laws and regulations that apply to the Software or Refurbisher s performance under this agreement Refurbishers that refurbish and resell an average of 5 000 Refurbished PCs per month are required to publish and maintain an environmental compliance statement on their web site They also agree to have end of life management practices that meet or exceed any guidelines policies or code of conduct that is published by the government of the country in which it is headquartered 3 3 Quality Refurbisher commits that the quality of each of Refurbisher s Refurbished PCs must meet or exceed standards or quality and performance generally accepted in the industry 3 4 Inactive Status Refurbisher may be considered inactive if it has not requested Product Keys under the terms of this agreement for a certain period of time as described on the Program Web Site 3 5 COA and Password Management Refurbisher shall take all steps to prevent unauthorized distribution duplication or pirating of the Software OPK and Program COA s Refurbisher shall not make the Program COA s available through any other means or channels Refurbisher shall keep all Program COA s in a secure location In addition Refurbisher must protect and manage its us
19. is agreement all rights granted in this agreement shall 2 immediately terminate and Refurbisher must return all Products and any portions thereof under its control as specified by Microsoft There are no refunds for returned items Upon termination or expiration of the license rights to a certain Product all Refurbisher rights granted in this agreement for that Product shall immediately terminate and Refurbisher must return the Product and any portions thereof under its control as specified by Microsoft There are no refunds for returned items c Survival Sections 3 through 9 will survive the termination or expiration of this agreement Refurbisher s sublicenses to Customers under this agreement will survive the termination or expiration of this agreement or the termination or expiration of Refurbisher s rights to a Product s under this agreement 5 NONDISCLOSURE a Confidential Information means MS s confidential and proprietary information and any other non public information which is designated as confidential by MS or which should reasonably be considered confidential b Refurbisher agrees 1 to refrain from disclosing or distributing the Confidential Information to any third party 2 3 4 for five years from the date of disclosure of the Confidential Information by MS to Refurbisher refrain from reproducing or summarizing the Confidential Information to take reasona
20. le attorneys fees costs and other expenses 8 5 Governmental Regulation a Applicable Laws and Regulations The Software and their OPKs are subject to U S and European Union export jurisdiction Releases or versions of certain Software and their OPKs may be subject to particular restrictions under the laws and regulations of a certain country or territory Refurbisher must comply with all international and national laws and regulations that apply to the Software These laws include 1 U S Export Administration Regulations 2 all applicable anti corruption laws including the U S Foreign Corrupt Practices Act and 3 importation manufacturing end user end use and destination restrictions issued by U S and other governments For additional information on exporting Software from the U S see http www microsoft com exporting b Government Approvals Refurbisher must obtain any required local government approvals at their own expense c Additional Information Refurbisher may require additional information about the Software in order to comply with applicable laws and regulations Upon request MS will provide Refurbisher with non confidential Software information that Refurbisher reasonably requires if available 9 GENERAL TERMS 9 1 Entire Agreement This agreement and the attachments any addendum licensing additional Microsoft products to Refurbisher and other documents made part of this agreement by their ter
21. ment with MS Refurbisher shall not install use run copy modify translate display distribute sublicense rent loan repackage or otherwise transfer any Software media e g disk CD other MS software product end user license agreements COA s or documentation relating to the Software or other MS software products c Refurbisher must not reverse engineer decompile or disassemble the Product software or OPK except to the extent expressly granted by this agreement or by applicable law notwithstanding this prohibition d Refurbisher will not advertise give a separate price for or otherwise market or distribute the Software OPK or any portion thereof as separate items from the Refurbished PC However Refurbisher may compensate end users for Software returned to Refurbisher under the EULA or License Terms e Distribution Limitations Refurbisher is not licensed to distribute Products to the People s Republic of China excluding the Special Administrative Regions of Hong Kong and Macau Traditional Chinese Language versions which may be distributed outside of the People s Republic of China are subject to the following limitations on distribution and preinstallation 1 The Traditional Chinese ZH language version of a Product may be distributed only within or to Taiwan The ZH language version also may not be preinstalled in the People s Republic of China PRC except in the Special Administr
22. ms constitute the entire agreement between the parties This agreement may be modified only by a writing executed by each of the parties 9 2 Relationship of the Parties The parties agree that this agreement will not be construed as creating a partnership joint venture agency relationship or as grant a franchise 9 3 No Waiver No waiver of any breach of any part of this agreement will be a waiver of any other breach Any waiver must be in writing and signed by an authorized representative of the waiving party 9 4 Severability If a court of competent jurisdiction finds any term of this agreement illegal invalid or unenforceable the remaining terms will remain in full force and effect 9 5 Assignment Refurbisher may not assign this agreement in whole or in part by contract merger operation of law or otherwise Any assignment in violation of this provision will have no effect 9 6 Interpretation The headings and titles of the provisions of this agreement are for convenience only and do not affect the interpretation of any provision 9 7 Limited Distribution Distribution and use of the Software is by license only MS does not authorize any portion of the Software to be issued to the public put into circulation or subject to a first sale as the copyright laws may use those or similar terms 9 8 Non Exclusivity Nothing in this agreement restricts Refurbisher from supporting promoting distributing or using non
23. not subject to an Excluded License 2 software that is subject to an Excluded License if distributed in a manner that does not subject or purport to subject the Software or any MS or MS Affiliate intellectual property related to the Software to the terms of an Excluded License 2 10 COAs Product Keys and Activation a Pre existing and Program COAs 1 Windows Operating System Software i ii For Citizenship Licenses no pre existing COA for a Microsoft Windows operating system product needs to be affixed for Refurbished PCs Refurbisher must permanently affix a new Program COA for the Windows Operating System Software that is preinstalled on the Refurbished PC The Program COA must be visible on the exterior of the Refurbished PC If the Refurbished PC does have a pre existing COA Refurbisher may at its option either mark through or place a sticker of its own design and manufacture over the product key on the pre existing COA Refurbisher must not remove or obscure the serial number on the pre existing COA For all licenses except Citizenship Licenses each Refurbished PC must have a pre existing COA for a Microsoft Windows operating system product affixed to it which must remain on the Refurbished PC In addition Refurbisher must permanently affix a new Program COA for the Windows Operating System Software that is preinstalled on the Refurbished PC The Program COA must be visible on the exterior of the Refurbished PC R
24. o change from time to time at MS discretion i Eligible Recipient means 1 an Eligible Charitable Organization 2 an Eligible Academic User or 3 a Specially Approved Recipient The faculty staff and students of any educational institution home school program hospital healthcare system and research laboratory are not included in the definition of an Eligible Recipient However this does not prohibit them from using Refurbished PCs as part of their role at an Eligible Recipient j Eligible Refurbisher means an entity that refurbishes PCs for others and is otherwise eligible to participate in the Registered Refurbisher Program For refurbishes see the definition of Refurbish k License Terms means the end user license agreement between Refurbisher and end user that is either part of the Software or provided to Refurbisher as part of the Pack I MS Affiliate means any entity that directly or indirectly controls is controlled by or is under common control with MS including Microsoft Corporation m OEM means original equipment manufacturer n Office Software means Microsoft Office Home amp Business 2010 o OPK means the OEM preinstallation kit that includes where applicable installation instructions utilities tools Software and or supplements delivered to Refurbisher by MS for installing the applicable Software on the Refurbished PC and assisting Refurbisher wi
25. of Refurbished PCs 1 Refurbisher must provide the following to MS in order to obtain a Product Key i valid Program user name password and any other required Program credentials ii the serial number or COA ID on the Refurbished PC s pre existing COA if applicable and iii the serial number or COA ID on the Program COA 2 Refurbisher must have connection to the internet in order to obtain Product Keys 3 Whether Refurbisher is using Program COAs that include Product Keys or obtaining the Product Keys separate from the Program COAs Refurbisher must also report the following for Citizenship COAs i full name of the entity that will be purchasing the Refurbished PC from Refurbisher or the name of the TAP in which the entity is a participant Purchasing Entity ii city and country of location of the Purchasing Entity and iii type of Purchasing Entity Eligible Academic User Eligible Charitable Organisation or Specially Approved Recipient c Product Key to accompany the Refurbished PC The Product Key for each Refurbished PC must be provided with the Refurbished PC in the form of a printed document The document will be generated by the Program Web Site and include the Product Key and Program COA serial numbers d Activation Either Refurbisher or the Customer must use the Product Key to activate the Refurbished PC e Recovery Refurbisher may create a recovery partition on the hard drive of a Refurbishe
26. s 1 Eligible recipients of a qualified Technology Access Program TAP A qualified TAP is a 2 3 4 5 documented program that distributes Refurbished PCs to Qualified Individuals It is run by one of the following i Eligible Charitable Organization ii Eligible Academic User iii national state provincial or local government agency or iv international governmental organization IGO A teaching hospital or medical training school A public research establishment fully funded by government on a local national or European level or A national or regional governmental initiative or such other initiative as approved in writing by MS to be eligible under the Registered Refurbisher Program Public libraries that provide their services to all residents of a given community without charge Some charges may apply for users outside a designated region or for other services ee Windows Operating System Software means ff 2 e Windows 7 Home Premium e Windows 7 Home Premium N e Windows 7 Home Premium K e Windows 7 Home Premium KN e Windows 7 Professional e Windows 7 Professional N e Windows 7 Professional K e Windows 7 Professional KN e Windows 8 1 e Windows 8 1N e Windows 8 1K e Windows 8 1 KN e Windows 8 1 Pro e Windows 8 1 ProN e Windows 8 1 Pro K and e Windows 8 1 Pro KN Windows Server Software means Windows MultiPoint Server 2011 Premium
27. s on an as is basis To the extent permitted by applicable law MS excludes any implied warranties or conditions of merchantability fitness for a particular purpose or non infringement Damage Disclaimer Refurbisher releases MS from all liability including any claim for indemnification or contribution MS shall not be liable under this agreement for any economic damages including e loss of profits or revenues e business interruption and e loss of business information or data MS shall not be liable under this agreement for any consequential special incidental indirect or punitive damages even if MS has been advised of the possibility of the damages This exclusion of liability applies in the event of fault tort including negligence misrepresentation strict or product liability Refurbisher acknowledges that all exclusions of liability and any subsequent damages shall apply even if any remedies fail of their essential purpose If MS contributes to the loss or damage of the Refurbisher which by law cannot be excluded by this agreement the loss or damage shall be limited to Refurbisher s direct damages as a result of a reasonable reliance upon MS These direct damages are limited to the amount paid by the Refurbisher under this agreement 7 INDEMNIFICATION Refurbisher will indemnify and defend at its expense MS against any Refurbisher Claim Refurbisher Claim means any third party claim or allegation against MS relat
28. t revoke this consent b MIOL If MS is defined as MIOL the laws of Ireland govern this agreement and any claims for breach of it regardless of conflict of laws principles The courts of Ireland are the exclusive venues for all disputes arising from this agreement Each party consents to the exercise of personal jurisdiction by these courts Refurbisher agrees that for the benefit of MS and MS Affiliates the courts of Ireland will have jurisdiction to hear and determine any suit action or proceedings that may arise out of or in connection with this agreement For those purposes Refurbisher submits to the jurisdiction of those courts Each party agrees that it cannot revoke this consent 8 2 Injunctive Relief MS may pursue injunctive relief against Refurbisher in any forum for a breach of confidentiality obligations to protect intellectual property rights or to enforce any award or order If MS pursues injunctive relief in a forum other than the defined Jurisdiction MS will give prior notice to Refurbisher No notice is required if MS reasonably determines that doing so will prevent it from reasonably protecting its intellectual property 8 3 UN Convention The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement 8 4 Attorneys Fees If either party employs attorneys to enforce any rights related to this agreement the primarily prevailing party will be entitled to recover its reasonab
29. th the refurbishment process p Pack means the package of Microsoft OEM System Builder Software that contains Software eligible for distribution under this agreement A Pack includes Software media documentation COA security devices and the end user license agreement q PC means a personal computer r Product or Software means the Windows Operating System Software Windows Server Software MS Digital Literacy Curriculum Courses and any other Microsoft software product licensed to Refurbisher under any addendum to this agreement as part of the Program It includes any Program COA APM and any Supplement MS does not provide Product in source code form s Product Key means a unique combination of numbers and letters that is used during Microsoft software installation to unlock or open the Software in the format specified by Microsoft on the Program Web Site at http www microsoft com registeredrefurb t Program means the Registered Refurbisher Program enabling refurbishers in the regions identified on the Program Web Site to install and activate the Software on Qualified PCs as described in this agreement Additional offerings included in the Program may be made available by addendum to this agreement for qualifying Refurbishers in specified geographic areas Program COA means the Certificate of Authenticity label designated by MS for use with the Software licensed
30. y or condition e strict liability or e negligence or other tort claims The limitations also apply even if Refurbisher is not fully paid for any losses or MS knew or should have known about the possibility of damages Refurbisher also releases MS from all liability in excess of the limits in this section This release includes any claim for indemnification or contribution even if such claims arise under local law 9 11 Taxes and Other Charges Excluded Refurbisher is responsible for any taxes duties fees excises or tariffs imposed on any of its activities in connection with this agreement Refurbisher must pay these charges taxes and other fees 9 12 Anti Piracy Refurbisher must not engage in the distribution of counterfeit or pirated Software If Refurbisher suspects any infringement of Microsoft intellectual property it must report it to Microsoft as soon as possible Refurbisher must also cooperate with the investigation 9 13 Technology Transfer This agreement does not create a technology transfer agreement as defined by applicable law because a the technology here is not an integrated part of a technology chain for production or management purposes and b the technology will have its own license Refurbisher will not hold themselves out as MS technology recipients Refurbisher will not attempt to identify MS as a technology provider under this agreement 9 14 Notices a Unless otherwise stated in this agreement
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