Beware Audit Terms In Microsoft's New MPSA

Microsoft is in the process of transitioning many of its volume-licensing customers from the Select Plus Agreement to the new Microsoft Products and Services Agreement (MPSA). (More information on the transition framework is available here.)

A notable difference between the Select Plus Agreement and the MPSA is that the MPSA is self-contained and is not signed subject to a master agreement, such as a Microsoft Business and Services Agreement (or its predecessor, the Microsoft Business Agreement). Under Select Plus (and still under the Microsoft Enterprise Agreement), most of the important, substantive legal terms associated with the licensing relationship were contained in the MBA/MBSA. Those terms included Microsoft's duty to defend against certain third-party claims, limitations of liability, and governing law, among others. They also included Microsoft's audit rights.