MICROSOFT CLIENT AGREEMENT
This Microsoft Client Agreement (the “Agreement”) is between Client and Microsoft and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Microsoft presents when an order is placed. This Agreement takes effect when the Client accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Client.
These General Terms apply to all of Client’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”
License to Use Microsoft Products
a. License grant. Products are licensed and not sold. Upon Microsoft’s acceptance of each order and subject to Client’s compliance with this Agreement, Microsoft grants Client a nonexclusive and limited license to use the Products ordered as provided in the applicable Use Rights and this Agreement. These licenses are solely for Client’s own use and business purposes and are non-transferable except as expressly permitted under this Agreement or applicable law.
b. Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period unless renewed. Licenses granted for metered Products billed periodically based on usage continue as long as Client continues to pay for its usage of the Product. All other licenses become perpetual upon payment in full.
c. Applicable Use Rights. For perpetual licenses, the Use Rights in effect when Client orders a Product will apply. For subscriptions, the Use Rights in effect at the start of each subscription period will apply. Clients with subscriptions for Software may use new versions released during the subscription period subject to the Use Rights in effect when those versions are released. For metered Products billed periodically based on usage, the Use Rights in effect at the start of each billing period will apply during that period. Microsoft may update the Use Rights periodically, but material adverse changes for a particular version will not apply during the applicable license, subscription, or billing period.
d. End Users. Client will control access to and use of the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.
e. Affiliates. Client may order Products for use by its Affiliates. If it does, the licenses granted to Client under this Agreement will apply to such Affiliates, but Client will have the sole right to enforce this Agreement against Microsoft. Client will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.
f. Reservation of Rights. Microsoft reserves all rights not expressly granted in this Agreement. Products are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a Product on a device do not give Client any right to implement Microsoft patents or other Microsoft intellectual property in the device itself or in any other software or devices.
g. Restrictions. Except as expressly permitted in this Agreement or Product documentation, Client must not (and is not licensed to):
(1) reverse engineer, decompile, or disassemble any Product, or attempt to do so;
(2) install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms;
(3) work around any technical limitations in a Product or restrictions in Product documentation;
(4) separate and run parts of a Product on more than one device;
(5) upgrade or downgrade parts of a Product at different times;
(6) transfer parts of a Product separately; or
(7) distribute, sublicense, rent, lease, or lend any Products, in whole or in part, or use them to offer hosting services to a third party.
h. License transfers. Client may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Client or an Affiliate. Upon such transfer, Client must uninstall and discontinue using the licensed Product and render any copies unusable. Client must notify Microsoft of a License transfer and provide the transferee a copy of these General Terms, the applicable Use Rights and any other documents necessary to show the scope, purpose and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.
i. Client Eligibility. Client agrees that if it is purchasing academic, government or nonprofit offers, Client meets the respective eligibility requirements (https://aka.ms/eligiblitydefinition). Microsoft reserves the right to verify eligibility and suspend product use if requirements are not met.
Non-Microsoft Products. Non-Microsoft Products are provided under separate terms by the Publishers of such products.
Client will have an opportunity to review those terms prior to placing an order for a NonMicrosoft Product through a Microsoft online store or Online Service. Microsoft is not a party to the terms between Client and the Publisher. Microsoft may provide Client’s contact information and transaction details to the Publisher. Microsoft makes no warranties and assumes no responsibility or liability whatsoever for Non-Microsoft Products. Client is solely responsible for its use of any Non-Microsoft Product.
Verifying compliance. Client must keep records relating to Products it and its Affiliates use or distribute. At Microsoft’s expense, Microsoft may verify Client’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Microsoft may engage an independent auditor (under nondisclosure obligations) or ask Client to complete a self-audit process. Client must promptly provide any information and documents that Microsoft or the auditor reasonably requests related to the verification and access to systems running the Products. If verification or self-audit reveals any unlicensed use, Client must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Microsoft’s other remedies, if unlicensed use is 5% or more of Client’s total use of all Products, Client must reimburse Microsoft for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Client price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
Privacy. Personal Data. Client consents to the processing of Personal Data by Microsoft and its Affiliates, and their respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Microsoft, Client will obtain all required consents from third parties (including Client’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.
Location of Personal Data. To the extent permitted by applicable law, Personal Data collected under this Agreement may be transferred, stored and processed in the United States or any other country in which Microsoft or its Affiliates, or their respective agents and subcontractors, maintain facilities. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.
a. Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Client Data, the terms of this Agreement, and Client’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.
b. Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-toknow basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. The Online Services Terms may provide additional terms regarding the disclosure and use of Client Data.
c. Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
d. Residual information. Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
e. Duration of Confidentiality obligation. These obligations apply (1) for Client Data, until it is deleted from the Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
a. Limited warranties and remedies.
(1) Online Services. Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Client’s use. Client’s remedies for breach of this warranty are described in the SLA.
(2) Software. Microsoft warrants that the Software version that is current at the time will perform substantially as described in the applicable Product documentation for one year from the date Client acquires a license for that version. If it does not, and Client notifies Microsoft within the warranty term, Microsoft will, at its option, (a) return the price Client paid for the Software license or (b) repair or replace the Software.
The remedies above are Client’s sole remedies for breach of the warranties in this section. Client waives any warranty claims not made during the warranty period.
b. Exclusions. The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Client is permitted to redistribute.
c. Disclaimer. Except for the limited warranties above and subject to applicable law, Microsoft provides no other warranties or conditions for Products and disclaims any other express, implied or statutory warranties for Products, including warranties of quality, title, noninfringement, merchantability, and fitness for a particular purpose.
Defense of third-party claims.
The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.
a. By Microsoft. Microsoft will defend Client against any third-party claim to the extent it alleges that a Product made available by Microsoft for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Microsoft and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Microsoft is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace the Product with a functional equivalent or (2) terminate Client’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Client’s continued use of a Product after being notified to stop due to a third-party claim.
b. By Client. To the extent permitted by applicable law, Client will defend Microsoft and its Affiliates against any third-party claim to the extent it alleges that: (1) any Client Data or Non-Microsoft Product hosted in an Online Service by Microsoft on Client’s behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Client’s use of any Product, alone or in combination with anything else, violates the law or harms a third party.
Limitation of liability.
For each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Client was required to pay for the Products during the term of the applicable licenses, subject to the following:
a. Subscriptions. For Products ordered on a subscription basis, Microsoft’s maximum liability to Client for any incident giving rise to a claim will not exceed the amount Client paid for the Product during the 12 months before the incident.
b. Free Products and distributable code. For Products provided free of charge and code that Client is authorized to redistribute to third parties without separate payment to
Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000.
c. Exclusions. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
d. Exceptions. No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for liability related to Client Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.
Selecting a Partner. Client authorizes Netsurit (“Partner”) to place orders on Client’s behalf and manage Client’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, Client must select an authorized replacement Partner or purchase directly from Microsoft. Partners and other third parties are not agents of Microsoft and are not authorized to enter into any agreement with Client on behalf of Microsoft.
Partner Administrator privileges and access to Client Data. If Client purchases Online Services from a Partner or chooses to provide a Partner with administrator privileges, that Partner will be the primary administrator of the Online Services and will have administrative privileges and access to Client Data and Administrator Data. Client consents to Microsoft and its Affiliates providing the Partner with Client Data and Administrator Data for purposes of provisioning, administering and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Client, and its privacy commitments may differ from Microsoft’s. Client appoints
Partner as its agent for purposes of providing and receiving notices and other communications to and from Microsoft. Client may terminate the Partner’s administrative privileges at any time.
Support and Professional Services. Client’s Partner will provide details on support services available for Products purchased under this agreement. Support services may be performed by Partner or its designee, which in some cases may be Microsoft. If Client purchases Professional Services under this agreement, the performance of those
Professional Services will be subject to the terms and conditions in the Use Rights.
Pricing and payment.
Client agrees to order from Partner, the Partner will set Client’s pricing and payment terms for that order, and Client will pay the amount due to the Partner.
a. Azure Services. Azure subscriptions are usage-based. Azure prices are dynamic, so it’s impossible to have a standard usage rate for Azure services. Charges for a resource are calculated by using one or more meters. Meters are used to track a resource’s usage throughout its lifetime. These meters are then used to calculate the bill. For example, a single virtual machine (VM) created in Azure may have the following meters created to track its usage:
a. Compute Hours (calculated in seconds)
b. IP Address Hours (calculated in seconds)
c. Data Transfer In
d. Data Transfer Out
e. Standard Managed Disk
f. Standard Managed Disk Operations
g. Standard IO-Disk
h. Standard IO-Block Blob Read
i. Standard IO-Block Blob Write
j. Standard IO-Block Blob Delete
When the VM is created, each meter begins emitting usage records. This usage and the meter’s price are tracked in the Azure metering system.
Term and termination.
a. Term. This Agreement is effective until terminated by a party, as described below.
b. Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Client’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.
c. Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:
(1) All licenses granted under this Agreement will terminate immediately except for fully paid, perpetual licenses.
(2) All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Client must immediately pay for unpaid usage as of the termination date.
(3) If Microsoft is in breach, Client will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
d. Suspension. Microsoft may suspend use of an Online Service without terminating this Agreement during any period of material breach. Microsoft will give Client notice before suspending an Online Service when reasonable.
e. Termination for regulatory reasons. Microsoft may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Microsoft to continue offering the Product without modification; or (3) causes Microsoft to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Microsoft terminates a subscription for regulatory reasons, Client will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
a. Independent contractors. The parties are independent contractors. Client and Microsoft each may develop products independently without using the other’s Confidential Information.
b. Agreement not exclusive. Client is free to enter into agreements to license, use, and promote the products and services of others.
c. Amendments. Microsoft may modify this Agreement from time to time. Changes to the Use
Rights will apply as provided in this Agreement. Changes to other terms will not apply until Client accepts them. Microsoft may require Client to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Client are expressly rejected and will not apply.
d. Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Client consents to the assignment to an Affiliate or third party, without prior notice, of any rights Microsoft may have under this Agreement to receive payment and enforce Client’s payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.
e. U.S. export. Products are subject to U.S. export jurisdiction. Client must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to Microsoft products, services, and technologies.
f. Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
g. Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
h. No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
i. Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.
j. Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Microsoft must be sent to the following address:
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 89511-1137
Notices to Client will be sent to the individual at the address Client identifies on its account as its contact for notices. Microsoft may send notices and other information to Client by email or other electronic form.
k. Applicable law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington and federal laws of the United States. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.
l. Dispute resolution. When bringing any action arising under this Agreement, the parties agree to the following exclusive venues:
(1) If Microsoft brings the action, the venue will be where Client has its headquarters.
(2) If Client brings the action against Microsoft or any Microsoft Affiliate located outside of Europe, the venue will be the state or federal courts in King County, State of Washington, USA.
(3) If Client brings the action against Microsoft or any Microsoft Affiliate located in Europe, and not also against Microsoft or a Microsoft Affiliate located outside of Europe, the venue will be the Republic of Ireland.
The parties consent to personal jurisdiction in the agreed venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations.
m. Order of precedence. These General Terms will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents, except that conflicting terms in the Use Rights take precedence over these General Terms as to the applicable Products. Terms in the Online Services Terms take precedence over conflicting terms in the Product Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.
n. Microsoft Affiliates and contractors. Microsoft may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Microsoft remains responsible for their performance.
o. Government procurement rules. By accepting this agreement, Client represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.
“Administrator Data” means the information provided to Microsoft or its Affiliates during signup, purchase, or administration of Products.
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Client” means the entity identified as such on the account associated with this Agreement.
“Client Data” means all data, including all text, sound, software, image or video files that are provided to Microsoft or its Affiliates by, or on behalf of, Client and its Affiliates through use of Online Services.
“End User” means any person Client permits to use a Product or access Client Data.
“Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.
“Microsoft” means Microsoft Corporation.
“Non-Microsoft Product” means any third-party-branded software, data, service, website or product, unless incorporated by Microsoft in a Product.
“Online Services” means Microsoft-hosted services to which Client subscribes under this Agreement. It does not include software and services provided under separate license terms.
“Online Services Terms” means the additional terms that apply to Client’s use of Online Services published on the Licensing Site and updated from time to time.
“Partner” means a company Microsoft has authorized to distribute Products to Client.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Product” means all Software and Online Services identified in the Product Terms that Microsoft offers under this Agreement, including previews, prerelease versions, updates, patches and bug fixes from Microsoft. Product availability may vary by region. “Product” does not include NonMicrosoft Products.
“Product Terms” means the document that provides information about Products available under this Agreement. The Product Terms document is published on the Licensing Site and is updated from time to time.
“Publisher” means a provider of a Non-Microsoft Product.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.
“Software” means licensed copies of Microsoft software identified in the Product Terms.
Software does not include Online Services, but Software may be part of an Online Service.
“use” means to copy, download, install, run, access, display, use or otherwise interact with.
“Use Rights” means the license terms and terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. License terms for all Products are published in the Product Terms. Terms of service for Online Services are published in the Online Services Terms.