Windows 7 device stage plug-in listing agreement this agreement “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”).

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.

1. 
   Definitions.
   

1. 
   “Company Marks” means the trademark(s) and logo(s) of Company set forth in Attachment B.
   

“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 Attachment A).

“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).

“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.

“End User” means any person or entity that downloads and/or uses the Company Plug-in Software.

“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.

“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.

“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.

“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.

“Term” has the meaning set forth in Section 13.1.

“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.

2. 
   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.
   
3. 
   Microsoft Obligations.
   

No Other Obligations. Except as expressly provided in Section 3.1, 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).

4. 
   Company Obligations. Company understands, acknowledges, and agrees that the obligations described in this Section 4, Section 5 and in Attachment A 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 Section 4 or of Attachment A is material and may result in termination. Moreover, if Company breaches any of the obligations in this Section 4, Section 5 or in Attachment A, Microsoft may immediately remove all references to Company (including any link to the Company Landing Page) from the Device Stage Referral Page.
   

Company Landing Page. During the Term: (a) the Company Landing Page will continue to meet the requirements contained in Attachment A; 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).

5. 
   Relationship with End Users.
   

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.

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.

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 Attachment C. 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.

6. 
   Trademark License. Company hereby grants to Microsoft a non-exclusive, royalty-free, fully-paid-up license to use the Company Mark(s) specified in Attachment B 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 Section 6 or in Section 8. Microsoft’s use of the Company Marks will be in accordance with the guidelines in Attachment B and 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.
   
7. 
   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 http://privacy.microsoft.com/en-us (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.
   
8. 
   Marketing; Publicity. Neither party will issue any press release concerning this Agreement (except as permitted under Section 6 or this Section 8) 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 Attachment B 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 Attachment B and include Company in its vendor list. Nothing in this Section 8, 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.
   
9. 
   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.
   
10. 
    Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9, 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 REFERRAL PAGE 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.
    
11. 
    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 SECTION 11 DOES NOT APPLY TO EITHER PARTY’S INDEMNITY AND DEFENSE OBLIGATIONS UNDER SECTION 12.
    
12. 
    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 Section 12 without first obtaining the Indemnitee’s written permission, which will not be unreasonably withheld or delayed.
    

13. 
    Term & Termination.
    

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 Section 4 or any obligations in Attachment A, 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).

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.

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 Section 13.4), and Sections 10-14.

14. 
    General.
    

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):

Acknowledgments. Company acknowledges that: (a) it has independently reviewed this Agreement; (b) it has not received or relied upon any warranty or guarantee, express or implied, including as to potential revenues or profits that may or may not inure to Company in relation to this Agreement; (c) the amount, if any, of revenues or profits that may inure to Company in relation to this Agreement largely depends upon Company’s business abilities; (d) Microsoft provides the listing free-of-charge; consequently, Microsoft’s obligations and duty of care will be of no greater than a reasonable commercial standard, and the allocation of risk and liability under this Agreement is reasonable; and (e) there are risks (including indemnification obligations) involved in entering into this Agreement.

Severability; Construction. If a court of competent jurisdiction finds any term of this Agreement unenforceable, that term will be enforced to the maximum extent permissible so as to affect the parties’ intent, and the remainder of this Agreement will continue in full force. All references to sections, parties, and Attachments are to the sections of, parties to, and Attachments to this Agreement, unless stated otherwise. All captions are intended solely for the parties’ convenience, and none will affect the meaning of any term. All references to “written,” “in writing” or similar refer to a non-electronic, paper document only, except where the Agreement states that email is authorized. All choices (no matter how described) by either party are made in such party’s sole discretion, subject to any implied duty of good faith, unless expressly stated otherwise. “Days” means “calendar days,” unless stated otherwise. This Agreement has been negotiated by the parties and their respective counsel and will be interpreted according to its plain meaning, without any presumption or inference that it should be construed to favor either party.

Reservation. All rights (including all intellectual property and proprietary rights) not expressly granted in this Agreement are expressly reserved by the respective owner of such rights. Without limiting the foregoing, nothing in this Agreement may be construed as a license or other transfer of rights to any Microsoft intellectual property, expressly or by implication, estoppel, or otherwise.

Counterparts; Facsimile Signatures. This Agreement may be executed in one (1) or more counterparts, each of which will be deemed an original, but which together will constitute one (1) and the same instrument. This Agreement may be executed by facsimile signature, and neither party will contest the validity of the execution of this Agreement solely on the basis of a signature being by facsimile. A facsimile copy of the Agreement, including the signature pages, will be deemed an original. The parties will, however, each deliver original execution copies of this Agreement to one another as soon as practicable following execution.

Miscellaneous. Each party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and nothing herein may be construed as creating any other relationship. When performing this Agreement, each party will comply with all applicable laws and other requirements of governments having jurisdiction (including laws related to consumer transactions and laws related to import or export). No waiver of any breach will waive any other breach, and no waiver will be effective unless made in writing and signed by the waiving party’s authorized representative. Unless stated otherwise, each party will pay its own costs to perform its obligations. All rights and remedies stated are cumulative and in addition to any other rights or remedies under law or at equity, subject only to any limitations stated in this Agreement. All referenced Attachments are hereby deemed incorporated into this Agreement.

Entire Agreement; Modification. This Agreement is not an offer by Microsoft, and it will not be effective until signed by Microsoft after signing by Company. This Agreement is the entire agreement between the parties with respect to the subject matter and merges and supersedes all prior and contemporaneous communications and prior agreements, written or oral, between the parties regarding the subject matter of this Agreement. This Agreement will not be modified except by a written agreement dated after the Effective Date and manually signed on behalf of Company and Microsoft by their respective duly authorized representatives.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective duly authorized representatives.

AGREED:		AGREED:
MICROSOFT CORPORATION		____________________________ (“COMPANY”)
By: (Sign)		By: (Sign)
Name: (Print)		Name: (Print)
Title:		Title:
Effective Date:		Date:

ATTACHMENT A

Company Obligations

At all times during the Term, Company, the Company Plug-in Software and Company Landing Page (as applicable) will comply with the following requirements.

The Device Stage Referral Page will be localized into the languages listed below. In order for the Company Plug-in Software to be listed on a particular localized Device Stage Referral Page, the Company must: (1) indicate in the table below (by marking “yes” or “no”) which localized Device Stage Referral Page(s) they wish to be listed on; and (ii) provide Microsoft with a fully localized description of the Company Plug-in Software (not to exceed 400 characters) for inclusion on the localized Device Stage Referral Page(s) they have selected. With respect to providing the “Web Address for Company Landing Page” below, Company may either: (1) provide a Web address that would take a user directly from the localized Device Stage Referral Page to a corresponding Company Landing Page; or (2) provide a Web address that would take a user directly from the localized Device Stage Referral Page to the main Company web site, provided that the main Company web site contains links for the user to go to the applicable Company Landing Page.

The Company Plug-in Software must satisfy the following criteria:

1. 
   The Company Plug-in Software must be made available for download to users on a stand-alone basis (i.e., can be downloaded by itself without extra features such as toolbars, etc.).
   
2. 
   Company may also offer a version of the Company Plug-in Software containing extra features (e.g., a toolbar) provided that: (a) Company provides a stand-alone version the Company Plug-in Software as required above; and (b) the stand-alone version of the Company Plug-in Software is more prominently displayed on the Company Landing Page than any other version of the Company Plug-in Software.
   
3. 
   The Company Plug-in Software shall not contain any viruses, Trojan horses, worms, time bombs, bots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another.
   
4. 
   The Company Plug-in Software must use the Microsoft Windows Sync API documented in the Windows 7 Software Development Kit (http://msdn.microsoft.com/en-us/library/dd317274(VS.85).aspx). In addition, Microsoft recommends that Company use the Microsoft Sync Framework (http://msdn.microsoft.com/en-us/library/cc281959.aspx) to develop the Company Plug-in Software.
   
5. 
   If the Company Plug-in Software is designed to work with a specific software application (e.g., Microsoft Outlook, Lotus Notes), such application to which the Company Plug-in Software relates must meet the requirements of the “Windows 7 Client Software Logo Program.” Details of this program can be found at: www.innovateon.com. (NOTE: The foregoing does not apply to Company Plug-in Software that is designed to work with a Web-based service (e.g., Windows Live Hotmail, Gmail, Yahoo! Mail, etc.).
   
6. 
   The installation program should not install any third party software or other software that is not required for the End User to use the Company Plug-in Software (e.g., trial software, toolbars, etc.).
   
7. 
   Company must provide technical support for at least the most current version of the Company Plug-in Software.
   
8. 
   The Company Plug-in Software must be able to accurately synchronize data between the Company Plug-in Software on the user’s computer and the user’s device. Accordingly, Company must test the Company Plug-in Software to ensure that the following requirements are met:
   
   1. 
      The download package for the Company Plug-in Software must contain all necessary components;
      
   2. 
      The name Company selects for the Company Plug-in Software (as displayed in the Sync interface drop down) should lead with the name of Company and then the product name. (e.g., “Contoso Contacts”);
      
   3. 
      For content types that Company’s data source supports, synchronization support must be bidirectional (i.e., supported from the Company Plug-in Software on the user’s computer to the device and vice versa);
      
   4. 
      The Company Plug-in Software should not cause significant performance degradation on a user’s computer;
      
   5. 
      The Company Plug-in Software must register itself in the Add/Remove programs list in the Windows 7 Control Panel in order to allow for the complete removal of the software and associated files from the user’s computer;
      
   6. 
      The Company Plug-in Software must not corrupt data during synchronization; and
      
   7. 
      Operation of the Company Plug-in Software must easy for users to use and not cause excessive support requests.
      

1. 
   Company must create, and operate at all times during the Term, a Company Landing Page for the Company Plug-in Software in accordance with Section I above.
   
2. 
   The Company Landing Page must be dedicated exclusively to the Company Plug-in Software; however, the Company Landing Page may contain links to other pages on the Company’s Web site(s).
   
3. 
   As noted above in Section II, the stand-alone version of the Company Plug-in Software must be more prominently displayed on the Company Landing Page than any other version of the Company Plug-in Software (if any).
   
4. 
   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.
   
5. 
   The Company Landing Page should contain only material and information that is appropriate and related to the download and use of the Company Plug-in Software. By way of example, and not as a limitation, the Company Landing Page should not:
   
   1. 
      Contain any material that defames, abuses, threatens or otherwise violates the legal rights (such as rights of privacy and publicity) of others.
      
   2. 
      Contain any inappropriate, profane, defamatory, obscene, indecent or unlawful content, material or information.
      
   3. 
      Contain any images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless Company owns or controls the rights thereto or has received all necessary consent to do the same.
      
   4. 
      Violate any applicable laws or regulations.
      

Company must at all times during the Term, provide customer support to the customer by telephone, Web communication, e-mail or instant messaging.

Notwithstanding anything in this Attachment A to the contrary, Microsoft reserves the right to modify or relax any requirements in any specific geography in order to satisfy customer needs and promote and/or satisfy local business or regulatory circumstances.

ATTACHMENT B

Company Marks and Usage Guidelines

This Attachment B may be modified from time to time upon the parties’ mutual written agreement.

Microsoft may use the Mark(s) only as permitted under Sections 6 and 8 of the Agreement.

[Company to provide in Microsoft Word format any applicable usage guidelines]

ATTACHMENT C

Support Transfer Specifications

This Attachment C may be modified from time to time upon the parties’ mutual written agreement.