WINDOWS 7 DEVICE STAGE PLUG-IN LISTING AGREEMENT

This agreement (“Agreement”) is by and between Microsoft Corporation (“Microsoft”), a Washington, U.S.A. corporation with its principal place of business at One Microsoft Way, Redmond, Washington 98052, and the corporation or other entity identified below (“Company”). The effective date of this Agreement will be the date of signing by Microsoft after Company has signed this Agreement (“Effective Date”).

Company Information Table
“Company” / Company Name: / Company to provide
Place of Incorporation: / Company to provide
Headquarters Mailing Address (if different than Company Contact Address): / Company to provide
Company to provide
Company to provide
“Company Contact” / Contact Name: / Company to provide
Contact Title: / Company to provide
Contact Mailing Address (No Post Office Boxes): / Company to provide
Company to provide
Company to provide
Contact Telephone Number: / Company to provide
Contact Fax Number: / Company to provide
Contact Email: / Company to provide
“Company Plug-in Software” / Identify: / Company to provide
“Company Legal Contact” / Contact Information (for notice under Section14.2): / Company to provide

Background

In order to enable Microsoft Windows 7 users to readily obtain software that allows them to use the Device Stage (for mobile devices) feature in Microsoft Windows 7 to synchronize certain personal information with a Device Stage-compatible mobile device, Microsoft will provide, subject to the terms of this Agreement, an HTML-based Web page within Device Stage listing compatible software plug-ins offered by qualifying software companies;

Microsoft will provide this listing free-of-charge;

Company is a provider of synchronization plug-in software that is compatible with Device Stage (for mobile devices) in Microsoft Windows 7, and Company meets the requirements contained in Attachment A to this Agreement; and

Microsoft and Company want to enter into this Agreement under which Microsoft will provide a link on the Device Stage Referral Page to the Company Landing Page where the Company Plug-in Software can be obtained, all as set forth below.

In consideration of the terms and conditions of this Agreement, the parties agree as follows.

Agreement

  1. Definitions.
  2. “Collateral Materials” means, collectively, product packaging, documentation, marketing materials, and advertising or promotional materials in any media, now known or hereafter developed, including printed media, broadcast media, electronic media, and online media.
  3. “Company Marks” means the trademark(s) and logo(s) of Company set forth in AttachmentB.
  4. “Company Plug-in Software” means the software, in object code form, listed in the Company Information Table (and further described in AttachmentA).
  5. “Company Landing Page” means the page(s) on Company’s Web site(s) that will contain a description of the Company Plug-in Software (and further described in AttachmentA).
  6. “Device Stage” means the Microsoft Windows 7 feature that helps users interact with any compatible device connected to the user’s Microsoft Windows 7-based computer, including mobile phones, portable media players, cameras and printers. Device Stage enables users to see device status and run common tasks. Common user scenarios supported in Device Stage include the synchronization of data between the user’s computer and the user’s device(s).
  7. “Device Stage Referral Page” means the HTML-based web page and user experience within Device Stage (for mobile devices) that contains a link to the Company Landing Page and links to the websites of other participating companies. The link to the Company Landing Page and the links to the websites of other participating companies will only be visible on the Device Stage Referral Page if the Microsoft Windows 7-based computer is connected to the Internet.
  8. “End User” means any person or entity that downloads and/or uses the Company Plug-in Software.
  9. “Indemnified Claim” means: (a)for Microsoft as Indemnitor, any action, cause of action, suit, proceeding, claim, or demand of any third party that, if true as alleged, reflects a breach by Microsoft of this Agreement; and (b)for Company as Indemnitor, any action, cause of action, suit, proceeding, claim, or demand of any third party that, if true as alleged: (i)reflects a breach by Company of this Agreement; (ii)otherwise relates, in whole or in part, to any worms, viruses, Trojan horses, or other unauthorized, hidden programs in the Company Plug-in Software, the Company Landing Page, or any electronic mail or other medium through which Company communicates with End Users or others; (iii)otherwise relates, in whole or in part, to any allegation that the Company Marks, Company Landing Page, or the Company Plug-in Software infringes upon any copyright, trademark, or patent, or misappropriates any trade secret, of any third party; or (iv)otherwise relates to Company’s use of any Personal Information collected by Company from End Users in relation to this Agreement.
  10. “Legal Requirement” means any constitution, act, statute, law, ordinance, treaty, rule, regulation, or official interpretation of, or judgment, injunction, order, decision, decree, license, permit, or authorization issued by any government, court, administrative agency, commission, or other governmental agency, authority, or instrumentality, domestic or foreign, of competent jurisdiction.
  11. “Microsoft Windows 7” means, for purposes of this Agreement only, Microsoft Windows 7 editions (inclusive of all service packs) that contain the Windows Media Player, unless otherwise specified in this Agreement.
  12. “Personal Information” means any information provided by Microsoft or collected by Company in connection with this Agreement: (a)that identifies or can be used to identify, contact, or locate the person to whom such information pertains; or (b)from which identification or contact information of an individual person can be derived. Personal Information includes: name, address, phone number, fax number, email address, social security number or other government-issued identifier, and credit card information. Additionally, to the extent any other information (e.g., a personal profile, unique identifier, biometric information, or IP address) is associated or combined with Personal Information, then such information also will be considered Personal Information.
  13. “Term” has the meaning set forth in Section13.1.
  14. “Web”means the World Wide Web, which is available via the Internet.

All other initially capitalized terms will have the meanings assigned to them in this Agreement.

  1. Non-Exclusivity. This Agreement is non-exclusive. It does not restrict either party’s ability to, directly or indirectly, acquire, license, develop, manufacture, distribute, or make available similar technology performing the same or similar functions as the Company Plug-in Software, or to market, distribute, or make available such similar technology, directly or indirectly, in addition to, or in lieu of, the Company Plug-in Software. For avoidance of doubt, Company will not be the exclusive provider of add-on software listed on the Device Stage Referral Page, generally or for any localization.
  2. Microsoft Obligations.
  3. Listing. Subject to Company’s timely provision to Microsoft of all necessary information concerning the Company Plug-in Software and related links to the Company Landing Page (including applicable URLs), Microsoft’s sole obligation regarding the Company Plug-in Software will be to refer to the Company Plug-in Software on the Device Stage Referral Page. Microsoft will include one(1) or more text or Company logo active hyperlinks from the Device Stage Referral Page to the Company Landing Page (and Company hereby grants to Microsoft any rights necessary for Microsoft to provide such links on the Device Stage Referral Page). The relative placement of the Company Plug-in Software on the Device Stage Referral Page (including ordering relative to other plug-in software from Microsoft or any third party) will be in alphabetical order based on Company name.
  4. No Other Obligations. Except as expressly provided in Section3.1, Microsoft has no other obligations regarding the Company Plug-in Software (including without limitation any other obligation to list the Company Plug-in Software or any obligation to market or distribute the Company Plug-in Software).
  5. Company Obligations. Company understands, acknowledges, and agrees that the obligations described in this Section4, Section 5 and in AttachmentA are integral to the purpose and intent of this Agreement, are a condition of Company’s continued listing on the Device Stage Referral Page, and that any breach (or other failure to perform any obligation) of this Section4 or of AttachmentA is material and may result in termination. Moreover, if Company breaches any of the obligations in this Section4, Section 5 or in AttachmentA, Microsoft may immediately remove all references to Company (including any link to the Company Landing Page) from the Device Stage Referral Page.
  6. Company Plug-in Software. During the Term: (a) the Company Plug-in Software will continue to meet the requirements contained in AttachmentA; and (b) Company will offer to End Users directed to the Company Landing Page from the Device Stage Referral Page the right to license the Company Plug-in Software subject to Company’s terms and conditions.
  7. Company Landing Page. During the Term: (a) the Company Landing Page will continue to meet the requirements contained in AttachmentA; and (b)Company will maintain the Company Landing Page at its sole expense. Company will use commercially reasonable efforts to ensure that the URL(s) for the Company Landing Page will remain functional throughout the Term (or as otherwise mutually agreed by the parties). The Company Landing Page will be dedicated exclusively to the Company Plug-in Software (but it may contain links to other pages on the Company’s Web site).
  8. Relationship with End Users.
  9. Overview. Company is solely responsible for all aspects concerning the downloading and licensing of the Company Plug-in Software by End Users, including customer service and support and completing electronic commercial transactions (including authorizing and processing of credit card purchases). Company will not: (a)make any representations, warranties, or promises to End Users regarding any Microsoft product; and (b)represent to End Users or others that Microsoft endorses or guarantees the performance of Company or of any Company Plug-in Software.
  10. End User Licensing. The Company Plug-in Software will be licensed by Company directly to each End User pursuant to Company’s end user licensing terms.
  11. End User Support & Updates. Each End User will be entitled to receive technical support otherwise and ordinarily provided to Company’s customers (e.g., via the Internet, telephone, or email). Company will provide a clear and conspicuous link or information directly on the Company Landing Page that tells End Users how to obtain technical support directly from Company.
  12. Support Call Hand-offs. During the Term, Microsoft may receive telephone calls and email messages from End Users concerning the Company Plug-in Software. Accordingly, Microsoft must have the ability to transfer (or forward, as applicable), and Company will use commercially reasonable efforts to accept from Microsoft any incoming telephone calls and email messages concerning the Company Plug-in Software that are directed to Microsoft, all as further described in AttachmentC. For avoidance of doubt, Company shall use commercially reasonable efforts to accept all telephone calls and email messages transferred from Microsoft, but, after such transfer, Company may refuse to provide technical support to End Users that are not otherwise entitled to support.
  13. Trademark License. Company hereby grants to Microsoft a non-exclusive, royalty-free, fully-paid-up license to use the Company Mark(s) specified in AttachmentB solely on the Device Stage Referral Page and other Collateral Materials referencing or describing the Company Plug-in Software. Microsoft acknowledges Company’s claim to ownership of the Company Marks, and all associated goodwill. Nothing in the Agreement or in its performance, or that might otherwise be implied by law, will operate to grant Microsoft any right, title, or interest in the Company Marks other than as specified in this Section6 or in Section8. Microsoft’s use of the Company Marks will be in accordance with the guidelines in AttachmentBand will inure solely to the benefit of Company. Microsoft will correct any deficiencies in its use of the Company Marks as soon as commercially practicable upon receipt of notice from Company.
  14. Privacy & Data Protection. Microsoft and Company will each comply with its own privacy policy regarding the collection of Personal Information, as each such policy may be modified from time-to-time, as well as any Legal Requirements applicable to privacy or Personal Information (including collection, retention, use and disclosure). Microsoft’s privacy policy is set forth at (or the equivalent policy as set forth on a Microsoft country- or region-specific Web site) (collectively, “Microsoft Privacy Policy”). Company will provide a clear and conspicuous link to the Company privacy policy on the Company Landing Page (and on any other Web site on which it may collect Personal Information specifically in connection with this Agreement). Company will be solely responsible for the acquisition, storage, protection, processing, use, and disclosure of any Personal Information collected or received by or for Company relating to this Agreement, and for any and all uses or disclosures it makes, or authorizes any other entity to make, with respect to any such Personal Information.
  15. Marketing; Publicity. Neither party will issue any press release concerning this Agreement (except as permitted under Section6 or this Section8) or use the other party’s name in connection with this Agreement without such other party’s prior written approval, which will not be unreasonably withheld or delayed. Microsoft may, however, subject to the usage guidelines (if any) in AttachmentB and for the sole purpose of identifying Company (in advertising, promotion, press releases, and other public disclosures) as a vendor offering software through this Agreement, make referential use of Company’s name and logo depicted in AttachmentB and include Company in its vendor list. Nothing in this Section8, however, may be construed to obligate either party to engage in any joint marketing except if, and solely to the extent that, the parties mutually agree in writing to do so.
  16. Representations & Warranties. Each party represents and warrants that: (a)it has the full right and power to enter into and perform this Agreement in accordance with its terms, and to grant any licenses under this Agreement; (b)its performance of any obligation under this Agreement will not knowingly violate any agreement or obligation between it and a third party; and (c)the individual signing on its behalf has full authority to bind it to this Agreement.
  17. Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION9, NEITHER PARTY MAKES, AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED, OR OTHERWISE), INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, WITH RESPECT TO ITS PERFORMANCE OR ANY MATERIALS PROVIDED TO THE OTHER PARTY UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, MICROSOFT MAKES NO WARRANTIES OF ANY KIND REGARDING THE DEVICE STAGE REFERRALPAGE OR ANY PRODUCTS OR SERVICES RELATED TO OPERATION OF THE DEVICE STAGE REFERRAL PAGE OR FROM WHICH THE DEVICE STAGE REFERRAL PAGE MAY BE ACCESSED.
  18. Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES RELATED TO THIS AGREEMENT, INCLUDING DAMAGES FOR LOST PROFITS, LOST BUSINESS OR INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION11 DOES NOT APPLY TO EITHER PARTY’S INDEMNITY AND DEFENSE OBLIGATIONS UNDER SECTION12.
  19. Indemnification. Each party (“Indemnitor”) will indemnify and hold harmless and upon request will defend the other party (“Indemnitee”) and the Indemnitee’s subsidiaries, affiliates, joint ventures, third-party agents, permitted sublicensees and successors, and its and their directors, officers, employees and agents, from all judgments, bona fide settlements, penalties, losses, costs, liabilities, expenses, and damages (including reasonable attorneys’ fees, costs, and expert witnesses’ fees) directly arising out of any Indemnified Claim. The Indemnitee will: (a)provide the Indemnitor reasonably prompt notice in writing of any Indemnified Claim and permit the Indemnitor, through counsel mutually acceptable to both parties, to answer and defend such Indemnified Claim; and (b)provide the Indemnitor information, assistance, and authority, at the Indemnitor’s expense, to help the Indemnitor to defend such Indemnified Claim. The Indemnitee may, at its expense, employ separate counsel to monitor and participate in the defense of any Indemnified Claim. The Indemnitor will not be responsible for any settlement made by the Indemnitee without the Indemnitor’s written permission, which will not be unreasonably withheld or delayed. The Indemnitor will not settle any claim or action under this Section12 without first obtaining the Indemnitee’s written permission, which will not be unreasonably withheld or delayed.
  1. Term & Termination.
  2. Term. The term of this Agreement (“Term”) will commence on the Effective Date and continue until terminated under either Sections13.2 or 13.3.
  3. Termination for Cause. Microsoft may terminate this Agreement immediately upon notice at any time if Company is in material breach of this Agreement and fails to cure that breach within thirty(30) days after notice. Microsoft may also deactivate any hyperlink to the Company Landing Page and remove any content relating to the Company Plug-in Software immediately upon notice by Microsoft of any breach of Section4 or any obligations in AttachmentA, in whole or in part, or upon any notice to Microsoft (from Company or from any third party) including but not limited to any allegation of infringement relating in whole or in part to any applicable Company intellectual property (including the Company Landing Page, the Company Marks, or the Company Plug-in Software).
  4. Termination for Convenience. Company may terminate this Agreement for any reason or no reason upon thirty(30) days’ notice to Microsoft. Microsoft may terminate this Agreement for any reason or no reason upon thirty(30) days’ notice to Company, but only if the Device Stage Referral Page is discontinued, or is discontinued for any particular geography as a whole.
  5. Effect of Termination. Upon termination or expiration of this Agreement for any reason, Microsoft will, as soon as commercially practicable, remove any Company Marks and hyperlinks to the Company Landing Page from the Device Stage Referral Page. Expiration or termination of this Agreement for any reason will not affect any existing End User license agreements for the Company Plug-in Software, which will continue in full force and effect in accordance with their terms.
  6. Survival. The following sections will survive termination or expiration of this Agreement: Section 1, 3.1 (only until such time as Microsoft can, using commercially reasonable efforts, remove any hyperlinks to the Company Landing Page from the Device Stage Referral Page), 3.2, 6 (solely to the extent that Company Marks are included in the Device Stage Referral Page or any Collateral Materials created on or before the Effective Date of such termination or expiration, solely for use in accordance with Section13.4), and Sections 10-14.
  7. General.
  8. Governing Law. This Agreement will be governed by the laws of the State of Washington as though entered into between Washington residents and to be performed entirely within the State of Washington. Each party consents to exclusive jurisdiction and venue in the state and federal courts sitting in King County, Washington. 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 will be entitled to recover its costs, including reasonable attorneys’ fees.
  9. Notices. All notices and requests in connection with this Agreement will be in writing and will be deemed given as of the day they are received either by messenger, delivery service, or in the U.S. mail, postage prepaid, certified or registered, return receipt requested, and addressed, if to Company, to the address in the Company Information Table, to the attention of the named Company Contact, with a copy to its Legal Advisor, and if to Microsoft, as follows (or to such other address as a party may designate under this notice provision):

To Microsoft: / Microsoft Corporation
One Microsoft Way
Redmond, WA 98052 / Phone: / (425) 705-5057
Fax: / (425) 936-7329
Attention: / Director, Business Development for Windows Portable Devices,
Windows Product Mgmt. / Copy To: / Legal & Corporate Affairs, Attention: Associate General Counsel, Windows Client & Core Development
Copy To Fax: / (425) 936-7409

14.3.Assignment. This Agreement shall be binding upon and inure to the benefit of each party’s successors and permitted assigns. Company may not assign this Agreement, in whole or in part, by operation of contract, law, or otherwise, except with the express written consent of Microsoft, and any attempted assignment by Company in violation of this Section14.3 will be void. For purposes of this Agreement, an “assignment” will be deemed to include each of the following: (a)a merger of Company with another party, where Company is not the surviving entity; (b)the acquisition by any person of more than twenty-percent(20%) of any class of Company’s voting stock (or any class of non-voting security convertible into voting stock) (whether in a single transaction or series of related transactions); and (c)the sale of more than fifty-percent(50%) of Company’s assets (whether in a single transaction or series of related transactions). In the event of such assignment or attempted assignment by Company, Microsoft may immediately terminate this Agreement.