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Online Services Supplemental Terms and Conditions

Definitions.

Capitalized words used, but not defined herein, shall have the meanings given them in the Master Agreement and/or Agreement. The following definitions replace or supplement the definitions in the Agreement, as appropriate:

“Customer Data” means all data, including all text, sound, or image files that are provided to Microsoft by, or on behalf of, Customer through Customer’s use of the Online Services.

“Online Services” means the Microsoft-hosted services identified in the Online Services section of the Product List.

“Product” means all software, Online Services and other web-based services, including pre-release or beta versions, identified on the Product List.

“Service Level Agreement” means the document specifying the standards Microsoft agrees to adhere to and by which it measures the level of service for an Online Service.

Limited Warranty for Online Services.

Microsoft warrants that the Online Services will perform in accordance with the applicable Service Level Agreement. This limited warranty is for the duration of Customer’s use of the Online Service, subject to the notice requirements in the applicable Service Level Agreement.

If Microsoft fails to meet this limited warranty and Customer notifies Microsoft within the warranty period, then Microsoft provide the remedies identified in the Service Level Agreement for the affected Online Service. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

This limited warranty is subject to the following limitations:

  1. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law last for one year from the start of the limited warranty;

  2. the limited warranty does not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement or the Product Use Rights, or resulting from events beyond Microsoft’s reasonable control;

  3. the limited warranty does not apply to components of Products that Customer is permitted to redistribute;

  4. the limited warranty does not apply to free, trial, pre-release, or beta products; and

  5. the limited warranty does not apply to problems caused by the failure to meet minimum system requirements.

OTHER THAN THIS LIMITED WARRANTY, MICROSOFT PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. MICROSOFT DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.

Customer’s agreement to protect.

Customer will defend Microsoft against any claims made by an unaffiliated third party that:

  1. any Customer Data or non-Microsoft software Microsoft hosts on Customer’s behalf infringes the third party’s patent, copyright, or trademark or makes intentional unlawful use of its Trade Secret; or

  2. arise from Customer’s or its end user’s violation of the terms of this agreement.

Limitation on liability.

To the extent permitted by applicable law, the liability of each party, its Affiliates, and its Contractors arising under this agreement is limited to direct damages up to the amount Customer was required to pay for the Online Service giving rise to that liability during the prior 12 months. In the case of Online Services provided free of charge, or code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to U.S. $5,000. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:

  1. Microsoft’s obligations under the section of the Master Terms titled “Defense of infringement, misappropriation, and third party claims” or Customer’s obligations under the section of these Supplemental Terms titled “Customer’s agreement to protect”;

  2. liability for damages caused by either party’s gross negligence or willful misconduct, or that of its employees or its agents, and awarded by a court of final adjudication (provided that, in jurisdictions that do not recognize a legal distinction between “gross negligence” and “negligence,” “gross negligence” as used in this subsection shall mean “recklessness”);

  3. liabilities arising out of any breach by either party of its obligations under the section of the Master Terms entitled “Confidentiality”, except that Microsoft’s liability arising out of or in relation to Customer Data shall in all cases be limited to the amount Customer paid for the Online Service giving rise to that liability during the prior 12 months;

  4. liability for personal injury or death caused by either party’s negligence, or that of its employees or agents, or for fraudulent misrepresentation; and

  5. violation by either party of the other party’s intellectual property rights.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR CONTRACTORS, WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS (EXCEPT TO THE EXTENT THAT SUCH VIOLATION RELATES TO CUSTOMER DATA), THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR MICROSFT’S OBLIGATIONS IN THE SECTION OF THE MASTER TERMS TITLED “DEFENSE OF INFRINGEMENT, MISAPPROPRIATION, AND THIRD PARTY CLAIMS” OR CUSTOMER’S OBLIGATIONS IN THE SECTION OF THESE SUPPLEMENTAL TERMS TITLED “CUSTOMER’S AGREEMENT TO PROTECT.”

Open Source License restrictions.

Certain third party license terms require that computer code be generally (1) disclosed in source code form to third parties; (2) licensed to third parties for the purpose of making derivative works; or (3) redistributable to third parties at no charge (collectively, “Open Source License Terms”). Neither party may use, incorporate, modify, distribute, provide access to, or combine the computer code of the other with any other computer code or intellectual property (collectively, “Provide”) in a manner that would subject the other’s computer code to Open Source License Terms. Microsoft is not responsible for Customer’s upload, use or distribution of Customer’s code from the Online Services. Customer may upload code to an Online Service and allow third parties access to use or download Customer’s code on the Online Service, provided that (1) such use is not restricted by a license agreement or the Product Use Rights and (2) any Open Source License Terms apply solely to Customer and their uploaded code, and not to any code or Products provided by Microsoft. Each party warrants that it will not provide the other party with, or give third parties access through the Online Services to, computer code that is governed by Open Source License Terms, except as described above.

Applicability of Supplemental Terms.

These Supplemental Terms apply only to Customer’s purchase and use of Online Services. Services (e.g., consulting or professional services) and Products other than Online Services remain subject to the terms of the Master Agreement, the Agreement, and any terms referenced therein. In the case of any conflict between these Supplemental Terms and the terms and conditions of the Master Terms or Agreement that are not expressly resolved by their terms, these Supplemental Terms control.