Entech's Microsoft Product Licensing Agreement
This Entech Microsoft Products Licensing Agreement (“Agreement”) is entered into by and between Entech Computer Services, LLC., a Florida limited liability corporation doing business as Entech (“Entech”) and the client of Entech (“Client”) who signed a Microsoft Products Agreement with Entech (“Execution Page”). This Agreement is effective as of the date Client executed the Execution Page. The terms of this Agreement apply to, govern, supplement, and control with respect to the Execution Page.
Entech is an information and technology service provider and consultant and obtains licenses for various Microsoft Software products and services (each Microsoft software product and each associated license or seat as well as any other Microsoft service is referred to herein collectively as a “Product”) on behalf of Entech’s clients as an authorized retailer in exchange for valuable consideration. Client and Entech have either previously or contemporaneously entered into a Entech Managed Agreement providing for certain services to be provided by Entech to Client. Client now desires to engage Entech to obtain and provide various Products according to the terms and conditions of this Agreement. Entech and Client are individually referred to herein as a “Party” and collectively as the “Parties”.
NOW, THEREFORE, the parties agree as follows:
For each Order, defined below, received by Entech, Entech shall obtain and assign to Client a fully paid up, non-transferable, and non-exclusive license to use an ordered Product (each a “License” and collectively the “Licenses”) for employees, agents, and contractors of the Client (each an “End User”) subject and according to the terms of this Agreement, the Total Care Agreement, and the most recent version of Microsoft Client Agreement (collectively the “Licensing Documents”). Client may only terminate a License subject to the terms of the Licensing Documents. “Software” includes the executable computer programs and applications contained in the Microsoft suite of offerings. All title, copyright, other intellectual property rights, and distribution rights of the Products remain exclusively with Microsoft.
2) Ordering Products.
Entech and Client will initially communicate and work together to identify the needs and requests of the Client for Products and do so again from time-to-time. Entech will provide an initial or updated quote or proposal to the Client for Products that, if accepted by the Client, becomes an order for Products (“Order”). Client may order Products that are provided by Microsoft, consumed by the Client, and billed on either: (i) a month-to-month basis; (ii) an annual basis as part of annual plans offered by Microsoft; or (iii) a daily basis depending on the Client’s daily use of the Products (each Order for Products for a specified period is referred to herein as a “Subscription”). Each Order shall set forth which Products, the number of Licenses or seats, and Subscription periods Client is purchasing.
3) Fees; Payment.
a) General. Entech shall procure the Products and Licenses on Client’s behalf, forward payment to Microsoft for the Products and Licenses, and pass on the fees for the Products and Licenses to Client. Except as may be expressly identified in an Order, Entech charges the Client Microsoft’s suggested retail price (“MSRP”) for each of the Products used by Client on a daily, monthly, or annual basis or as is otherwise described in this Agreement (“Fees”). Client expressly agrees to pay and be entirely responsible for payment of all Fees including but not limited to reimbursement of Fees paid by Entech to Microsoft on Client’s behalf.
b) Monthly Subscriptions. If Client orders month-to-month Subscriptions for Products, the Fees billed to the Client will be based on the actual number of Licenses and Products consumed by the Client in the previous month on an ongoing basis.
c) Annual Subscriptions. If Client orders an annual Subscription for Products, the Fees shall be fixed for the entire twelve (12) month Subscription period and Client shall prepay the Fees for entire twelve (12) month Subscription in advance prior receiving the Licenses and Products. If Client orders more Licenses or seats not included in the original annual Subscription, the new Licenses will be a separate Order but will co-terminate or renew with the original annual Subscription. If Client orders new Products not included in the original annual Subscription, the new Products will be entirely separate from the annual Subscription.
d) Daily Consumption Subscriptions. Daily consumption Subscriptions are one (1) month online Microsoft services that are billed based on actual Client usage in the preceding month without upfront commitment, such as Microsoft Azure. The Fees generated for Client’s daily consumption Subscriptions will be billed to the Client based on the Client’s actual daily usage in the preceding month. As Client is the owner of the administrative access credentials for all Products, Client will have access to modify daily consumption Subscriptions and usage levels at any time. Client agrees to pay for all Fees generated by all usage under any such daily consumption Subscription, whether generated by the actions of an End User or by Entech. Entech may, at the Client’s written request, submit usage quotas and/or limits to Microsoft on behalf of Client.
e) Client Invoices. For monthly and daily Subscriptions, Microsoft invoices the Fees generated by the Client for the Products and Licenses consumed in each month to Entech approximately five (5) days following the end of each month. Immediately after Entech receives an invoice from Microsoft for Products used by the Client in a prior month, Entech will electronically issue an invoice to Client for the Fees generated by the Client in that month (“Client Invoice”).
f) Payment Terms. Each Client Invoice is due and payable to Entech upon receipt. If a payment due hereunder is more than thirty (30) days delinquent, Entech may impose and collect a delinquency charge of one and one-half percent (1.5%) per month (18% per annum) of the amount delinquent, as well as the cost of any legal or collection fees incurred by Entech, all of which Client agrees to pay.
g) Upgrades; Downgrades. Client may from time-to-time order upgrades and downgrades to daily and monthly Subscriptions. Fees for upgrades or downgrades in a given month will be reflected in the Client Invoice generated for given month without proration.
h) Discrepancies. If the Client identifies a discrepancy between any quantity of Products, Fees, or usage of daily consumption Subscriptions as identified in a Client Invoice versus what is reflected in the Client’s records or reporting, Client must report that discrepancy to Entech within ten (10) days after the invoice date and must provide adequate and timely assistance to Entech to investigate and resolve the discrepancy.
4) Client’s Obligations; Representations.
a) Microsoft End User Agreement. Client shall agree in writing to the latest version of Microsoft’s Client Agreement pertaining to the Products located at https://www.microsoft.com/licensing/docs/clientagreement (“Microsoft Client Agreement”).
b) Supervision of End Users. Client shall use best efforts to monitor and supervise Client’s End Users who use the Products to ensure that the End Users adhere to the terms of the Licensing Documents. Client shall also use best efforts to monitor and supervise End Users’ usage of the Products and the Fees generated thereby.
c) Client represents and warrants that the individual who signed the Execution Page had actual and apparent authority to sign the Execution Page, that the Client has full corporate or other necessary approval and authorization to enter into this Agreement, and that the Company is bound by this Agreement.
d) Client agrees that it shall indemnify and hold harmless Entech for any violation, intentional or otherwise, by client or any of its employees, contractors, or agents, of this agreement or the terms and conditions of the Microsoft Client Agreement that result in the imposition or threatened imposition of liability to Entech, including termination of Entech’s rights or contracts, and including but not limited to attorney fees and costs to defend such claims.
5) Entech’s Obligations.
a) Initial Support. Entech shall provide initial support to the Client and its End Users for the Products.
b) Ongoing Management and Support. Entech shall provide ongoing management and support of the Products to the Client and its End Users according to and under the terms of the Total Care Agreement.
c) Compliance. Entech shall use commercially reasonable efforts to ensure that Client and Client’s End Users adhere to the Microsoft Client Agreement.
d) Monitoring. Entech may actively measure or monitor acquisition, retention, activation, and renewals of Products by the Client and the Client’s End Users for the sole purpose of advising on the Client’s compliance with the licensing terms of the Microsoft Client Agreement and any related end user license agreement. Entech is not obligated to provide any other measuring or monitoring services.
The term of this Agreement will begin on the Effective Date and continue in effect until so long as Client continues to receive Products from Entech under this Agreement or until terminated according to the terms of this Agreement (“Term”).
a) For Cause. If Client fails to pay any Client Invoice on time or materially breaches any term of this Agreement, Entech may terminate this Agreement at any time following five (5) days’ written notice to Client of non-payment or material breach of this Agreement.
b) Non-Renewal. Each Subscription for Products will automatically renew at the end of each relevant Subscription period. If Client desires to terminate a Subscription, Client must inform Entech in writing of the Client’s intent not to renew a Subscription within seventy-two (72) hours of the start of the new Subscription period. Client may cancel daily consumption Subscriptions at any time but agrees to pay a cancellation fee that Microsoft may assess and charge to the Client.
a) Microsoft may terminate Client’s status as a Client of Microsoft at any time.
b) As a manager of Client’s purchased Products, Entech may cancel or disable a Subscription for a Product at any given time.
c) All Client data stored on of Microsoft’s applications or cloud offerings remains the sole property of the Client.
d) Entech expressly disclaims all warranties including the warranties of title, merchantability, fitness for a particular purpose, and functionality of the Products.
9) Liability Limitation.
Microsoft’s limitation of liability can be found in the Microsoft Client Agreement. Entech’s limitation of liability can be found in the Total Care Agreement, which is incorporated herein by reference and made a part of this Agreement. With respect to the use of any Products, the Parties agree that any liability is solely Microsoft’s.
a) Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to the conflict of law provisions thereof. Any legal suit, action, proceeding or dispute arising out of or relating to this Agreement, shall be instituted solely in the federal courts of the United States of America or the courts of the State of Florida located in the County of Lee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, proceeding or dispute.
b) Survival. The terms of Sections 3, 8, 9, and 10 shall survive the termination of this Agreement.
c) Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement.
d) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
e) Attorneys’ Fees. The prevailing Party in any action, lawsuit, proceeding, or arbitration brought by a Party to enforce or interpret this Agreement or award damages for breach of this Agreement by the other Party this Agreement shall be entitled to recover the Prevailing Party’s costs and fees, including actual attorneys’ and paralegals’ fees, incurred in bringing or defending such action, lawsuit, proceeding, or arbitration.
f) Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous representations, warranties, understandings and agreements, both written and oral, with respect to such subject matter contained herein.
g) Assignment. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns. Entech shall have the right, upon written notice to Client, to assign any or all of its rights and obligations under this Agreement in the event of a change in control of Entech, sale of all or substantially all of the assets of Entech, and/or merger of Entech with another entity. Client may not assign any of its rights or obligations hereunder without the prior written consent of Entech, which consent shall not be unreasonably withheld, conditioned or delayed. A change in control transaction whereby (a) the Client sells all or substantially all of the Client’s assets in one (1) or a series of transactions, (b) the Client’s equity holders sell, exchange, or transfer fifty percent (50%) or more of the Client’s equity securities, or (c) the Client issues new equity securities that cause any one (1) person to hold fifty percent (50%) or more of the Client’s equity securities shall constitute an assignment requiring Entech’s written consent. Any purported assignment by Client in violation of this Section shall be null and void.
h) Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy.
i) Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given (a) when delivered if delivered in person, (b) on the next business day if transmitted by national overnight courier or (c) on the date delivered if sent by email and receipt is confirmed other than by automated response, in each case to the Parties principal place of business or designated and authorized representative or contact person.
j) Amendment and Modification. The Parties agree that Entech has the full right and ability to amend, modify, update, or change this Agreement at any time in Entech’s sole and absolute discretion after delivering to the Client five (5) days’ written notice. The Parties agree that a notification on a Customer Invoice from Entech to Client that the terms of this Agreement have changed with a hyperlink reference to the latest version of this Agreement constitutes written notice required by this paragraph.
k) Interpretation; Headings. Time is of the essence under this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Last revised April 11, 2022