MICROSOFT WINDOWS AZURE MARKETPLACE
DATED: February 2013
THANK YOU FOR CHOOSING MICROSOFT WINDOWS AZURE MARKETPLACE! Please read the following agreement carefully.
This Microsoft Windows Azure Marketplace Agreement (“Agreement”) is a contract between you, corporation, or other legal entity (“you”) and Microsoft Corporation, One Microsoft Way, Redmond, Washington, USA, or based on your primary headquarters, one of the Microsoft Corporation affiliates identified in Section 15 (“Microsoft,” “we,” “us” or “our”). This Agreement applies to your access and use of the Microsoft online marketplace “Microsoft Windows Azure Marketplace”, including any Windows Azure Marketplace services, catalogues, data, applications, software, sites, information, materials, content and updates made available to you as part of such marketplace (“Marketplace Service”).
If you intend to use any of the Marketplace Services in connection with your Windows Azure account (for example, running software obtained from the Windows Azure Marketplace in your Windows Azure account), such use is also governed by the Microsoft Online Services Agreement or Enterprise Agreement, as applicable, and terms referenced therein.
By checking the box, below, you acknowledge that you have read this Agreement and agree to its terms, including the electronic delivery of notices and disclosures in connection with the Marketplace Service, that you are authorized to enter into this Agreement, and that your use of the Marketplace Services is for COMMERCIAL PURPOSES ONLY. If you do not or are unable to accept these terms or do not want to enter into this Agreement with Microsoft, please close this web page and exit this site.
1. HOW YOU MAY USE THE MARKETPLACE SERVICE.
The Marketplace Service is an online service that enables you to identify and sign up for or purchase a subscription to data and applications made available by publishers via the Marketplace Service under a Marketplace Service unified provisioning and billing framework (such publishers’ data or applications collectively, “Marketplace Publisher Content”). Marketplace Publisher Content does not include applications or data listed on the Marketplace Service as “Catalog.” The “Catalog” applications and data are listed as a convenience for your information. The provisioning and billing for Catalog content will vary depending on the publisher’s practices and terms. Any terms, including payment, billing, privacy, and licensing are between you and the third party publisher of such Catalog content. Without limiting the foregoing, no right or license to any Microsoft intellectual property is granted with respect to such Catalog content, , whether by implication, estoppel or otherwise, unless we are the publisher of the applicable Catalog Content.
iii. Catalog content is not a Marketplace service offering and is only listed on our Marketplace Service web pages as a convenience for you. All transactions and information exchange regarding Catalog content is entirely between you and the publisher of that content.
iv. You understand that, by using the Marketplace Service, you may encounter information and offerings that include content that you deem offensive, outdated, inaccurate or otherwise objectionable. Access to and use of content made available through the Marketplace Service is at your own risk. Microsoft Parties (defined below) shall not be liable for your access to or use of any Third Party Offerings, including without limitation Marketplace Publisher Content.
v. Microsoft’s sole obligation and your exclusive remedy for any claims of copyright infringement is takedown and removal of the infringing content from the Marketplace Service, as further described in http://www.microsoft.com/info/cpyrtInfrg.htm.
vi. Content made available via the Marketplace Service may contain financial data. Microsoft is not a broker/dealer or registered investment advisor under U.S. federal securities law or securities laws of other jurisdictions and does not advise individuals as to the advisability of investing in, purchasing, or selling securities or other financial products or services. Nothing contained in the Marketplace Service is an offer or solicitation to buy or sell any security. Neither Microsoft nor its licensors of stock quotes or index data endorse or recommend any particular financial products or services. Nothing in the Marketplace Service, including any datasets or financial applications, are intended to be professional advice, including but not limited to, investment or tax advice.
vii. Microsoft organizes and displays Marketplace Publisher Content and Catalog content in various content categories within the Marketplace Service. Categorization is provided for your convenience only. Microsoft makes no representation or warranty that Marketplace Publisher Content or Catalog content will be placed in all relevant content categories or that each listing, description or display of such content, including datasets or applications, is accurate, complete or up to date.
viii. If you are interested in making application(s) and/or data available on the Marketplace Service, you may use the Windows Azure Marketplace Publisher Portal to submit application(s) and/or data to Microsoft. Your submission of Marketplace Publisher Content is subject to the Windows Azure Marketplace Publisher and Catalog Listing Agreement, which is available at the Windows Azure Marketplace Publisher Portal. Microsoft is not under any obligation to accept any application(s) or data that you submit. If Microsoft accepts applications(s) and/or data that you submit, you must accept the Windows Azure Marketplace Publisher and Catalog Listing Agreement, which is available at the Windows Azure Marketplace Publisher Portal, prior to Microsoft making such application(s) and/or data available on the Marketplace Service. If Microsoft does not accept your applications(s) or data, Microsoft is not under any obligation to return to you anything that you submitted. You may only use the Windows Azure Marketplace Publisher Portal to submit application(s) and/or data to Microsoft.
c. MARKETPLACE SERVICE APIS. Subject to your compliance with the terms of this Agreement and the additional conditions provided below, you may use the Marketplace Service APIs made available to you by Microsoft to write, develop or host online applications, web sites, or other online services that interface with the Marketplace Service to access the applicable Marketplace Publisher Content (your “Applications”).
Additional Conditions Regarding Marketplace Service Application Programing Interfaces (APIs):
§ Microsoft may limit the number of requests that you can make to the Marketplace Service and Marketplace Publisher Content to protect our system or to enforce reasonable limits on your use of the Marketplace Service or Marketplace Publisher Content. Additionally, publishers may place restrictions on the number of requests that you can make to their respective content, which will be enforced by Microsoft (“Specific throttling”). Specific throttling limits may be displayed on the publisher’s content detail page for which they apply. The Specific throttling limits may be changed at any time, with or without notice.
§ Microsoft may change, deprecate or republish Marketplace Service APIs from time to time. It is your responsibility to ensure that calls made to the Marketplace Service are compatible with then-current Marketplace Service APIs. You further acknowledge that we may change or remove features or functionality of the Marketplace Service at any time, with or without prior notice to you.
d. MARKETPLACE SERVICE SUPPLEMENTAL SOFTWARE.
You may receive or interact with software that enables or enhances your use of Marketplace Service (but that are not Marketplace Publisher Content or Catalog content) (the “Marketplace Supplemental Software”):
i. If you receive Marketplace Supplemental Software from us:
a) Your use of that software is under the terms of the license that is presented to you for that software. We reserve all other rights to such software not expressly granted by us under the license terms, whether by implication, estoppel or otherwise. Unless we notify you otherwise, your license to use the software will end on the earlier of (i) the date Your Account (see Section 3) that uses the software terminates or (ii) termination/cancellation of the Marketplace Service, and you must promptly uninstall the software. We may disable the software after such event. You acknowledge and agree that we may disable the software upon expiration or termination of your rights to use the software.
b) If such software has no separate license, then we grant you, subject to the terms and conditions of this Agreement, a limited, personal, non-exclusive, revocable license to use the software only for and during the authorized use of the Marketplace Service to which the software relates, unless other rights or limitations are stated in this Agreement. You may not copy, modify or create derivative works, publish, transmit, distribute, sell or attempt to sell or transfer, or otherwise use or exploit any software unless we or our suppliers have expressly allowed you to do so. You will not disassemble, decompile, or reverse engineer any software associated with the Marketplace Service, except and only to the extent that the law expressly permits this activity. We reserve all other rights to the software not expressly granted by us under the license terms, whether by implication, estoppel or otherwise.
c) We may automatically check your version of the software. We may also automatically download upgrades to the software to your computer or other device on which the software is installed to update, enhance and further develop the Marketplace Service. You acknowledge and agree that we may automatically check your version of the software and download upgrades as provided in this subsection.
ii. Marketplace Supplemental Software consisting of third party scripts or code linked to or referenced from the Marketplace Service are licensed to you by the third parties that own such code, not by Microsoft.
2. HOW YOU MAY NOT USE THE MARKETPLACE SERVICE.
a. You may not interfere or attempt to interfere in any manner with the functionality or proper performance of the Marketplace Service or any of its associated technologies and services, including the availability or accessibility of Third Party Offerings.
b. You may not access or use the Marketplace Service for any unlawful or deceptive purpose or in any way that is illegal or promotes illegal activities. Without limitation, you may not access or use the Marketplace Service in any manner that:
i. might be discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age,
ii. is defamatory, offensive, malicious or harmful to any person or entity,
iii. would violate local, state, federal or other applicable consumer privacy regulations, or
iv. would compile or use any information obtained through the Marketplace Service for the purpose of spamming, unsolicited sales or any advertising, marketing or other activities that are impermissible under Microsoft’s anti-spamming policy at http://privacy.microsoft.com/en-us/anti-spam.mspx.
c. You may not use the Marketplace Service (or any component thereof) to build a competitive service or to otherwise copy the design, functionality and/or user interfaces within the Marketplace Service. Further, you may not (directly or indirectly) offer or provide the Marketplace Service as a service to third parties. You are not permitted to sell, assign, lease, rent, transfer, broadcast, act as a service bureau, distribute or grant rights in and to the Marketplace Service to any third party. You are also prohibited from 'framing', 'mirroring’, linking to, or incorporating the Marketplace Service or any of its components within your own online environment.
d. You may not remove, obscure, or alter any notice of any trademarks, service marks, service or trade names, logos, and other proprietary designations of Microsoft, its affiliates or its suppliers.
3. MARKETPLACE SERVICE ACCOUNT.
a. ACCOUNT REGISTRATION. To obtain Marketplace Publisher Content via the Marketplace Service, you must agree to this Agreement and create a Marketplace Service account (“Your Account”) with your Windows Live ID. Your Account user ID and password, along with any assigned keys or other credentials provided to you must be treated as confidential. Microsoft Parties (defined below) will not be liable for any loss resulting from the unauthorized use of your Windows Live ID, Your Account password or any assigned access keys or credentials.
b. WINDOWS LIVE ID. Windows Live ID is used for authentication. Windows Live ID is a multi-site authentication service that helps you to sign in to web sites and conduct e-commerce transactions. You can find out more about Windows Live ID by going to the Windows Live ID web site at https://accountservices.passport.net/PPNetworkHome.srf?lc=1033. The Windows Live ID privacy statement at http://privacy.microsoft.com/en-us/default.aspx sets forth your and our rights and responsibilities for information you provide as part of Windows Live ID.
c. ACCOUNT USE. You are responsible for all activity that takes place with Your Account (including your Billing Account), including all use by your employees or other authorized agents, who must comply with all of the terms of this Agreement. You may not access anyone else’s account at any time without the express permission of the account holder.
4. PAYMENT. The Marketplace Publisher Content made available through the Marketplace Service portal include a variety of offerings, some of which are made available for a fee (“Paid Subscription(s)”) and others that are made available at no charge (“No Fee Subscription(s)”). You may also be offered a subscription on a trial basis (“Trial Subscription(s)”). In order to access Paid Subscriptions and Trial Subscriptions, you will need to create a billing account(s) (“Billing Account(s)“).
If you have a Billing Account(s), in consideration of your use of any Paid Subscriptions and Trial Subscriptions, you agree to pay applicable fees in the amounts listed in the respective Paid Subscriptions detail pages and as described below.
When you create your Billing Account for purposes of subscribing to Paid Subscriptions or Trial Subscriptions, you must enter a valid payment method. You must be authorized to use the payment method. You authorize us to charge you for the Paid Subscription(s) using your payment method and for any Paid Subscription(s) for which you choose to sign-up or use while this Agreement is in force. For Trial Subscriptions, you will not be charged for Trial Subscription(s) during the trial offer period. If you do not cancel your Trial Subscription(s) within the trial offer period, such Trial Subscription(s) will be converted to Paid Subscription(s) and you will be charged accordingly.
For any Paid Subscription offers with rates on a periodic basis, you agree to pay monthly charges in advance. We may charge you a different amount than what you approved (subject to local taxes and other applicable charges). If the amount is different than the amount you authorized or the amount we charged you in the previous month, we will tell you the amount and the date of the charge at least 10 days before your scheduled billing date. In addition, for any Paid Subscription(s), we may bill you for more than one of your prior billing periods together for amounts that have not been paid or processed. Other purchases (such as a one-time download) will be billed at the time you make the purchase. If we informed you that the Paid Subscription(s) will be provided indefinitely or automatically renewed, we may automatically renew your Paid Subscription(s) and you authorize us to charge you for any renewal term. You may add additional payment methods to your Billing Account. If the primary method you have designated for a particular service is unavailable or invalid for any reason, you authorize us to charge any other payment method you may have on file with us.
For any Billing Accounts you create, you also agree to the following:
a. Updates to Your Billing Account. You must keep all information in your Billing Account current, including your billing address and the expiration date of your payment card, otherwise we may not be able to process a payment and any Paid Subscription to which you have subscribed may be suspended until you update your Billing Account information. You can access your Billing Account at https://billing.microsoft.com, where you can make changes to your Billing Account. You authorize us to use any updated account information regarding your payment method provided by your issuing bank or the applicable payment network. You may change your payment method at any time. If you tell us to stop using your payment method, we may cancel your Paid Subscription(s). Your notice to us will not affect charges we submit to your Billing Account before we reasonably could act on your request.
b. Prices and Price Increases. Prices for Paid Subscriptions may change from time to time, but we will tell you before any such change. If there is a specific time length and price for your Paid Subscription offer, then that price will remain in force for that time. After the offer period ends, your use of the Paid Subscription content will be charged at the new price. We will tell you the amount and the date of the charge at least 10 days before your scheduled billing date. If your Paid Subscription to the Marketplace Publisher Content is on a periodic basis (for example, monthly), with no specific time length, then we will tell you the date of any price change. That date will be not less than 30 days after we tell you of the price change. If you do not agree to these changes, then you must cancel and stop using the Paid Subscription content before the changes take place. If you cancel your subscription, then your subscription ends at the end of your current subscription time length or, if we bill your Billing Account on a periodic basis, at the end of the billing period in which you cancelled. Currency exchange settlements are based on your agreement with your payment method provider.
c. Taxes. The prices for Paid Subscriptions do not include any taxes. You are responsible for any taxes that you are legally obligated to pay including, but not limited to, paying Microsoft any applicable value added, sales or use taxes or like taxes that are permitted to be collected from you by Microsoft under applicable law. If any taxes are required by law to be withheld on payments made by you to Microsoft, you may deduct such taxes from the amount owed Microsoft and pay them to the appropriate taxing authority; provided, however, that you shall promptly secure and deliver to Microsoft, at the applicable address set forth in Section 15 (to the attention of: Accounts Payable re: Windows Azure Marketplace), an official receipt for any such taxes withheld or other documents necessary to enable Microsoft to claim a Foreign Tax Credit. You will make certain that any taxes withheld are minimized to the extent possible under applicable law.
d. Refund Policies. Unless otherwise provided by law, all charges are non-refundable unless stated otherwise and the costs of any returns will be at your expense.
e. Online Statement; Errors. We will provide you with an online billing statement. This is the only billing statement that we provide. IT IS YOUR RESPONSIBILITY TO PRINT OR SAVE A COPY OF EACH ONLINE STATEMENT AND TO RETAIN COPIES FOR YOUR RECORDS. Go to https://billing.microsoft.com to view, print or request a paper copy of this statement. If you request a paper copy, we may charge you a retrieval fee. We will only provide paper copies for the past 120 days. If we make an error on your bill, we will correct it promptly after you tell us and we investigate the charge, provided that you tell us within 120 days after an error first appears on your bill. You release us from all liability and claims of loss resulting from any error that you do not report to us within 120 days after the error first appears on your online statement. If you do not tell us within this time, we will not be required to correct the error.
f. Cancelling a Paid Subscription. You may cancel your Paid Subscription at any time, with or without cause. Got to https://datamarket.azure.com and click the “My Account” link to obtain information on cancelling your Paid Subscription to the applicable Marketplace Publisher Content. You may continue to access any cancelled Paid Subscription until the end of your then-current billing period, but you will not be charged again for that Paid Subscription. Cancellation of the Paid Subscription by you will not alter your obligation to pay all charges made to your Billing Account or any amounts otherwise due.
g. Late Payments. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
h. Access Charges. You must provide at your own expense the equipment and Internet connections that you will need to access and use the Marketplace Service. If you access the Marketplace Service through a telephone line, please call your local phone company to determine if the access numbers you select are subject to long distance or other toll charges at your location. Also, if you access the Marketplace Service through wireless applications (e.g., cell phones), your carrier, such as a wireless carrier, may charge fees for alerts, web browsing, messaging and other services that require the use of airtime and wireless data services. Check with your carrier to verify whether there are any such fees that may apply to you. You are solely responsible for any costs you incur to access the Marketplace Service through any wireless or other communication service.
i. Auto-refill. As part of a Paid Subscription that is subject to a transaction, character, user, or other discrete balance limitation (collectively, Transactions) in a given subscription period (e.g., 5,000 Transactions per 30 days), you may have the option to enable Auto-refill. Auto-refill automatically re-subscribes you to your current Paid Subscription when your Transaction balance reaches a specific balance threshold (e.g., 10% of the initial Transaction balance, or 500 Transactions remaining in a 5,000-Transaction subscription). If you enable Auto-refill, you agree that, when such threshold is reached, we may automatically cancel your current Paid Subscription and re-subscribe you to a new Paid Subscription, and authorize us to charge you for such new subscription term at the subscription price in effect at the time of Auto-refill. If you enable Auto-refill but such threshold is not met during your current Paid Subscription period, your Paid Subscription will be renewed in accordance with the terms of such Paid Subscription. You may limit the number of times that Auto-refill occurs in any given 30-day period (“Auto-refill Cap”), or elect to allow Auto-refill to occur without limitation. We will inform you when an Auto-refill occurs by notifying you that your current Paid Subscription has been cancelled and a new Paid Subscription has been established. However, we are unable at this time to notify you if Auto-refill does not occur (1) due to problems with your primary or other payment method or (2) in the event you will have exceeded your Auto-refill Cap. You are therefore responsible for monitoring the status of your Auto-refill Cap and keeping your Billing Account information current in accordance with Section 4(a). You may disable Auto-refill at any time, and we will use our best efforts to process your request to disable Auto-refill as soon as possible. However, please note that if the Transaction balance threshold is reached within 2 hours of your request to disable, Auto-refill may still occur. You should therefore cancel Auto-refill at least 2 hours before you anticipate that the Transaction balance threshold will be met. Auto-refill is not available for Trial Subscriptions, No Fee Subscriptions, “unlimited” subscriptions that are not subject to a Transaction limit (e.g. $500 for unlimited Transactions in a subscription period), or promotional or trial subscriptions, including subscriptions that have been initiated using a coupon or other promotional code.
5. SUPPORT SERVICES; SECURITY; REMOVAL OF DATA.
a. Third Party Offerings. Microsoft is not responsible for providing technical support, development assistance, customer service or any other services to you in connection with your use of any Third Party Offerings.
b. Marketplace Service. For support policies regarding the Marketplace Service, please review the information at http://datamarket.azure.com/support.
§ Service Levels. The Marketplace Service may be inaccessible due to scheduled and unscheduled reasons, including maintenance updates, power outages, system failures, extended downtime and other interruptions. During such periods, you may be unable to access or use all of, or a portion of, the Marketplace Service. In the event of an outage or interruptions that Microsoft determines may cause risk to the Marketplace Service, Microsoft may determine in its sole discretion to suspend the Marketplace Service. You acknowledge and agree that your ability to access the Marketplace Service, Your Account, Billing Accounts, and Marketplace Publisher Content may be suspended, delayed or interrupted for any reason, including scheduled and unscheduled maintenance, power outages, system failures and other interruptions.
§ Security. We use a variety of security technologies and procedures to help protect unauthorized access to or use of the Marketplace Services; however, we cannot guarantee that we will be successful at doing so. Accordingly, without limitation to any other provisions of this Agreement, you acknowledge that you bear sole responsibility for adequate security, protection and backup of your data, content, software programs or services you use in connection with your access to or use of the Marketplace Services. We strongly encourage you, where available and appropriate, to take measures to protect your data, content, software applications or services, including without limitation using encryption technology to protect from unauthorized access, and to routinely archive as appropriate. In using the Marketplace Service, you agree to promptly notify us if you learn of a security breach related to the Marketplace Service.
6. YOU ARE SOLELY RESPONSIBLE FOR YOUR ACCOUNT. You are responsible for all activity that takes place with Your Account, and any associated accounts, including your Billing Account, to the maximum extent permissible under applicable law. Without limitation, it is your obligation to: (i) prevent corruption, deletion, destruction or loss of any content in Your Account, including your Billing Account; (ii) protect your Windows Live ID, Your Account passwords and any assigned keys or certificates; and (iii) ensure your Applications and any software that you use or run with the Marketplace Service is current with the latest security patches or updates.
8. UPDATES TO AGREEMENT TERMS. We may revise, update, modify or replace this Agreement at any time, with or without prior notice to you. If you do not agree with any modifications or additional terms in a subsequent Agreement, you may reject such modifications or terms by ceasing all future use of the Marketplace Service and cancelling Your Account, Billing Account, and any active subscriptions and licenses to Marketplace Publisher Content.
9. NO WARRANTY. The Marketplace Service, including any APIs and software made available to you under Section 1(c) and 1(d), is provided "as-is," "with all faults" and "as available." Microsoft does not guarantee the Marketplace Service or the accuracy, quality, quantity or timeliness of content or information included in or provided in connection with the Marketplace Service, including without limitation Third Party Offerings. Microsoft and its suppliers, licensors, service providers, vendors, resellers and affiliates (collectively, the "Microsoft Parties") give no warranties, guarantees or conditions of purchase for the Marketplace Service, including any Third Party Offerings provided in connection with the Marketplace Service. For purposes of clarification, this provision does not change any warranties, guarantees or conditions of purchase made by providers or publishers of Third Party Offerings to you. You may have additional consumer rights under your local laws that this Agreement cannot change; however, Microsoft Parties exclude and disclaim any implied warranties including those of merchantability, title, fitness for a particular purpose, workmanlike effort and non-infringement.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA OR OTHER INFORMATION, USE, GOODWILL) ARISING OUT OF, BASED ON, OR RESULTING FROM YOUR USE OR INABILITY TO USE THE MARKETPLACE SERVICE, APPLICATIONS, DATA, MARKETPLACE PUBLISHER CONTENT OR OTHER THIRD PARTY OFFERINGS (INDIVIDUALLY AND COLLECTIVELY, “OFFERINGS”).FOR ILLUSTRATION ONLY, AND WITHOUT LIMITING OR INTENDING TO LIMIT THE ABOVE, MICROSOFT PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM: (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, SOFTWARE PROGRAMS, CONTENT OR SERVICES; (B) UNAUTHORIZED ACCESS TO OR USE OF YOUR ACCOUNTS, INCLUDING BILLING ACCOUNTS; (C) ANY ALTERATION, CORRUPTION, DELETION, DAMAGE OR LOSS OF ANY OFFERINGS, OR OTHER CONTENT OR APPLICATIONS USED IN CONNECTION WITH THE OFFERINGS; (D) FAILURE TO PROVIDE ACCURATE OR COMPLETE INFORMATION WITH RESPECT TO THE OFFERINGS; (E) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ONLINE ACCESS TO OR USE OF THE OFFERINGS; (F) INCOMPATIBILITIES BETWEEN THE MARKETPLACE SERVICE AND OTHER OFFERINGS, OTHER SERVICES, SOFTWARE OR HARDWARE; AND (G) ANY THIRD PARTY CONDUCT OR TRANSMISSIONS OR DATA. MICROSOFT PARTIES SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS IN THE MARKETPLACE SERVICE THAT AFFECT YOUR ABILITY TO ACCESS, USE, SELECT OR RETRIEVE ANY OFFERINGS.
11. THESE LIMITATIONS ON LIABILITY APPLY EVEN IF IT RESULTS IN LOSSES TO YOU THAT ARE NOT COMPENSATED AND MICROSOFT PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. SUCH LOSSES WILL NOT CONSTITUTE A FAILURE OF THIS AGREEMENT’S ESSENTIAL PURPOSE.
12. TERM AND TERMINATION.
a. Term. The term of this Agreement will begin, and you may begin using the Marketplace Services, once you agree to the terms of this Agreement by checking the “accept” box below and complete the registration process for Your Account.
13. INTELLECTUAL PROPERTY RIGHTS; COPYRIGHT CLAIMS.
ALL RIGHTS TO THE MARKETPLACE SERVICE ARE RESERVED. We, our licensors and our suppliers reserve all right, title and interest (including all intellectual property and proprietary rights) in and to our respective products and services made available to you under this Agreement. In accepting the terms of this Agreement or using the Marketplace Service, you do not acquire any ownership interest in or rights to any Marketplace Publisher Content (including for Paid Subscriptions), Microsoft products, Microsoft services or Third Party Offerings that may be listed or displayed within Marketplace Service. Under Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to service provider's designated agent. Microsoft’s notice and procedure for making claims of copyright infringement is located at: http://www.microsoft.com/info/cpyrtInfrg.htm .
OUR RIGHTS TO USE FEEDBACK. You may, but are not obligated to, provide opinions, feedback, suggestions and other information to Microsoft regarding your use of the Marketplace Service (collectively, “Feedback”). If you elect to provide Feedback, You hereby license to Microsoft, its suppliers and assigns, without charge, any rights needed under your intellectual property, to use, share and commercialize any such Feedback in any way and for any purpose. These rights survive any termination or expiration of this Agreement.
14. LINKS TO THIRD PARTY SITES. The links made available on the Marketplace Service web pages will let you leave Microsoft’s site. The linked sites are not under the control of Microsoft and Microsoft is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Microsoft is not responsible for webcasting or any other form of transmission received from any linked site. Microsoft is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Microsoft of the site.
15. CONTRACTING PARTY, CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES.
a. If your primary headquarters is located in Europe, the Middle East or Africa, you are contracting with Microsoft Ireland Operations Limited, Atrium Block B, Carmenhall Road, Sandyford Industrial Estate, Dublin 18, Ireland, and the laws of Ireland govern the interpretation of this Agreement and apply to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of the country to which we direct your service. With respect to jurisdiction, you may choose the responsible court in Ireland or in the country to which we direct your service for all disputes arising out of or relating to this Agreement.
b. If your primary headquarters is located in North or South America, you are contracting with Microsoft Corp., One Microsoft Way, Redmond, WA 98052, USA, and Washington state law governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country to which we direct your service. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA, for all disputes arising out of or relating to this Agreement.
c. If your primary headquarters is located in Australia, Hong Kong, India, Malaysia, New Zealand or Singapore, you are contracting with Microsoft Regional Sales Corporation 438B Alexandra Road #04-09/12 Block B, Alexandra Technopark Singapore 119968, and the laws of Singapore govern this Agreement. You and we irrevocably agree to the exclusive jurisdiction and venue of the Singapore courts for all disputes arising out of or relating to this Agreement, regardless of conflict of laws principles.
d. If your primary headquarters is located in Japan, you are contracting with Microsoft Co. Ltd (MSKK), Odakyu Southern Tower, 2-2-1 Yoyogi, Shibuya-ku, Tokyo 151-8583. The laws of Japan govern this Agreement and any matters arising out of or relating to it. You and we irrevocably agree to the exclusive original jurisdiction and venue of the Tokyo District Court for all disputes arising out of or relating to this Agreement.
e. If your primary headquarters is located in Korea, you are contracting with Microsoft Korea, Inc., 6th Floor, POSCO Center, 892 Daichi-Dong, Kangnam-Gu, Seoul, 135-777, Korea. The laws of the Republic of Korea govern this contract. You and we irrevocably agree to exclusive original jurisdiction and venue of the Seoul District Court for all disputes arising out of or relating to this Agreement.
16. INTERPRETING THE AGREEMENT. A court may hold that we cannot enforce a part of this Agreement as written. If this happens, then you and we will replace that part with terms that most closely reflect our intention and the rest of this Agreement will not change. This Agreement forms the entire agreement regarding your use of the Marketplace Service. This Agreement supersedes any prior agreements or statements (whether oral or written) regarding your use of the Marketplace Service.
17. CONSENT TO ELECTRONIC DISCLOSURES; ASSIGNMENT; NOTICE; GOVERNMENT CUSTOMERS; EXPORT; WAIVER OF RIGHT TO VOID ONLINE PURCHASES; NEW ZEALAND STATUTORY LIABILITY. This Agreement is in electronic form. We have promised to send you certain information in connection with the Marketplace Service and have the right to send you certain additional information. There may be other information regarding the Marketplace Service that the law requires us to send you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel Your Accounts (including your Billing Accounts). We may provide required information to you:
o by e-mail at the e-mail address you specified when you signed up for your Marketplace Service accounts (referenced above as Your Account and/or Billing Account);
o by access to a Microsoft Web site that will be designated in an e-mail notice sent to you at the time the information is available; or
o by access to a Microsoft Web site that will be generally designated in advance for this purpose.
You may not assign this Agreement. Microsoft may assign this Agreement to its affiliates.
Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you can access and use the Marketplace Service, you acknowledge that you have the necessary software and hardware to receive and retain these notices. If you do not consent to receive any notices electronically, you must stop using the Marketplace Service. You may notify us as stated in the “Microsoft Windows Azure Platform Support,” “Feedback,” or “help” areas for the Marketplace Service.
Before accepting this Agreement, government customers should consult with their Microsoft representative to assure full compliance with local laws and government procurement processes.
The Marketplace Service, including software provided by Microsoft, is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Marketplace Service, including any software provided by Microsoft. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.
To the maximum extent permitted by applicable law, you waive your rights to void purchases under this Agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
The following provisions are only applicable to customers in New Zealand.
(i) Business. When we act as a “supplier” (as defined in the Consumer Guarantees Act 1993 (NZ) (“CGA”)) of a service or software, you confirm that such service or software provided by us under this Agreement is acquired for the purposes of a business (as that term is defined in the CGA) that the CGA does not apply to the service or software supplied by Microsoft.
(ii) Consumers. Subject to subsection (i) above, nothing in this Agreement is otherwise intended to limit the rights of a “consumer” (as defined in the CGA) and the terms of this Agreement are to be modified to the extent necessary to give effect to this intention