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Microsoft System Center Advisor Subscription Agreement

Last Updated: January 2013

This Subscription agreement (“Agreement”) is between the entity agreeing to these terms (“Customer,” “you” or “your”) and Microsoft Corporation, (“Microsoft, “we,” “us,” or “our”).  The terms and conditions of this Agreement apply to your access and use of the Microsoft System Center Advisor Subscription, including any technology, information, software, materials, and updates that Microsoft makes available to you as part of such services (the “Online Service”). Unless otherwise expressly noted, the following terms apply to the Online Service provided to you under this Agreement.

This Agreement is effective on the date you accept it or upon your first use of the Online Service. If you are accepting this Agreement on behalf of your employer or another legal entity, you represent and warrant that you have the authority to bind that entity and that you are agreeing to these terms on behalf of that entity. If you cannot truthfully make these representations, do not accept this Agreement.

Terms and Conditions

  1. Definitions

    1. “Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity. If you are an agency of a state, provincial, or local government, “Affiliate” means (1) any government agency, department, office, instrumentality, division, unit or other entity, of your state, provincial or local government that you supervise or is part of you, or which supervises you or you are part of, or which is under common supervision with you; (2) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of your state or province and located within your state’s or province’s jurisdiction and geographic boundaries; and (3) any other entity in your state or province expressly authorized by the laws of your state or province to purchase under state or provincial contracts; provided that a state or province and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government or its Affiliates. Notwithstanding the foregoing, provincial Crown corporations are not Affiliates for the purposes of this definition. If you are an agency of the U.S. government, “Affiliate” means any other agency of the U.S. government. If you are an agency of the Canadian government, “Affiliate” means any other agency of the Canadian government, except for a federal Crown corporation.

    2. “Customer Data” means all data, including all text, sound, or image files that you provide, or are provided on your behalf, to us through your use of the Online Service. For more information on the data collected by the Online Service see the Microsoft System Center Advisor Privacy Statement available at http://go.microsoft.com/fwlink/?LinkID=195849.

    3. “License” means the non-exclusive, non-perpetual, non-transferable right to copy, install, use, access, display, run and/or otherwise interact with this Online Service for evaluation purposes.

    4. “Microsoft” means Microsoft Corporation, and its affiliates, as appropriate.

    5. “Online Service” is defined in the first paragraph of this Agreement.

    6. “Portal” means the Microsoft System Center Advisor Portal currently located at http://www.systemcenteradvisor.com or at an alternate web site Microsoft identifies.

    7. “Supplemental Software” means any software provided to you as part of the Online Service and which is used with the Online Service to enable certain functions of the Online Service.

    8. “Term” means the term of this Agreement as provided in Section 4 below.

    9. “Subscription” means a subscription to the Online Service during the Term, subject to the other terms provided herein.

  2. Your use of our Online Service.

    1. General. You may activate any number of Subscriptions for each Microsoft Account on our authentication network. Minimum system requirements or other factors may affect your ability to use the Online Service. We reserve all rights not expressly granted in this Agreement. This Agreement covers your use of the Subscription.

    2. Privacy, Use and Security of Customer Data. We will handle your Customer Data according to the terms of this Agreement and the privacy, use and security terms set forth in the System Center Advisor Privacy Statement at http://go.microsoft.com/fwlink/?LinkID=195849.

    3. Supplemental Software. To enable optimal access and use of the Online Service, you may need to install Supplemental Software, including upgrades and/or updates. This Agreement governs your use of Supplemental Software, and any upgrades/updates, unless we present separate license terms to you upon installation. Any separate license terms apply to your use of the Supplemental Software and are between us and you. You may use Supplemental Software only to support the Online Service. You may make install and run any number of instances of Supplemental Software as long as you use the Supplement Software, directly or indirectly, with the Online Service. Any copies you make must be complete copies (including copyright and trademark notices) and made from Microsoft-approved media or a network source. You may use a third party to make and install these copies, but you agree to be responsible for that third party’s actions. You agree to use reasonable efforts to inform anyone you allow to use the Supplemental Software that it is licensed from us and subject to the terms of this Agreement. See Section 11 of this Agreement for more information about Supplemental Software.

    4. Transferring to Affiliates or third parties not permitted. Licenses are granted under this Agreement for your use with your Subscriptions. You may not transfer any Licenses granted under this Agreement.

    5. Limitations on use. You may not reverse engineer, decompile or disassemble the Online Service, except where applicable law permits it despite this limitation. You may not rent, lease, lend, resell, or host to or for third parties the Online Service, except as expressly permitted for the Online Service in a separate agreement. You may not separate and use the components of the Online Service on two or more computers, upgrade or downgrade components at different times, or transfer components separately, except as provided a separate agreement.

    6. Online Service Scope of Use (Code of Conduct). You may not:

      • use the Online Service in a way that is prohibited by any law, regulation or governmental order or decree in any relevant jurisdiction, or that violates others’ legal rights;

      • use the Online Service in a way that could harm it or impair anyone else’s use of it;

      • use the Online Service to try to gain unauthorized access to any service, data, account or network by any means;

      • falsify any protocol or email header information (e.g., “spoofing”);

      • use the Online Service to send “spam” (i.e., unsolicited bulk or commercial messages) or otherwise make available any offering designed to violate these terms (e.g., denial of service attacks, etc.); or

      • remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the Online Service.

    7. Availability of Online Service. Availability of the Online Service, some of its functionality, and language versions varies by country. Customers may use the Online Service to analyze the configuration of Customer’s servers located in the specific countries identified at http://go.microsoft.com/fwlink/?LinkID=229842 or at an alternate web site Microsoft identifies. In any countries where such access is not prohibited by applicable law, customers with an internet connection can view the System Center Advisor web site (www.systemcenteradvisor.com).

    8. Responsibility for your IDs and accounts. You are responsible for protecting the confidentiality of your credentials for your Microsoft Account associated with this Agreement. In addition, you are responsible for your passwords, if any, and all activity with your Online Service accounts including that of users you provision and dealings with third parties that take place through your account or associated accounts. You must keep your accounts and passwords confidential. You must tell us right away about any possible misuse of your accounts or any security incident related to the Online Service.

    9. Responsibility for your Customer Data. You are solely responsible for Customer Data and information used to develop, operate, or maintain any software programs or services you use to access or use the Online Service.

    10. Feedback. If you give feedback about the Online Service to Microsoft, you give to Microsoft, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies and services to use or interface with any specific parts of a Microsoft software or service that includes the feedback. You will not give feedback that is subject to a license that requires Microsoft to license the Online Service to third parties because we include your feedback in them. These rights survive this Agreement. If you provide feedback about the Online Service to Microsoft through another website or service, the terms of that site or service, and specifically any terms regarding feedback, apply to any feedback submitted through that website or service.

  3. Pricing and Taxes.

    1. Prices. No fees are charged for the Subscriptions for the duration of the Term provided you comply with this Agreement.

    2. New agreement. Upon notice, we may require you to agree to enter into an updated agreement that will govern usage from that date forward.

    3. Taxes. You are responsible for any taxes you are legally obligated to pay.

  4. Term and termination.

    1. Agreement Term. This Agreement will remain in effect from the date you activate a Subscription of this Online Service until it is terminated by you or us (“Term”).

    2. Termination by you. You may terminate this Agreement and thus your Subscription at any time during the Term. You must follow the process, if available, on the Portal or otherwise contact Microsoft customer service (see contact information on the Portal) to terminate this Agreement and your Subscription. In the event that you terminate this Agreement, Microsoft has no obligation to retain Customer Data and may delete Customer Data immediately.

    3. Termination by Microsoft. Microsoft may terminate this Agreement and your Subscription at any time during the Term, for any of the following reasons:

      1. you violate the terms of this Agreement;

      2. we are otherwise required by law to do so;

      3. we believe that your use of the Online Service represents a direct or indirect threat to our network function or integrity or anyone else’s use of the Online Service; or

      4. we decide to cease providing the Online Service.

    4. Regulatory environment: modification or termination by Microsoft. We may modify or terminate an Online Service in any country where there is any current or future government requirement or obligation that subjects us to any regulation or requirement not generally applicable to businesses operating there, presents a hardship for us to continue operating the Online Service without modification, and/or causes us to believe these terms or the Online Service may be in conflict with any such requirement or obligation. For example, we may modify or terminate the Online Service in connection with a government requirement that would cause us to be regulated as a telecommunications provider.

    5. Online Service Updates. We may modify the functionality or features or release a new version of the Online Service from time to time. After an update, some functionality or features may not be available. If we update the Online Service and you do not use the updated Online Service, some features may not be available to you and your use of the Online Service may be interrupted.

    6. Effect of termination on Supplement Software. If the Agreement is terminated, you must delete all copies of Supplemental Software licensed under this Agreement and destroy any associated media. We may ask you to provide written certification of the deletion and destruction.

    7. Customer Data Retention and Effects of Termination:

      1. Configuration and Alerts Data Retention. You can view Customer Data uploaded during the most recent 90 days. Older data may be deleted and, upon deletion, cannot be restored by Microsoft or you. You can view Customer Data through the Portal.

      2. Customer Data Retention upon Termination. Upon termination of this Agreement and your Subscription, you must contact Microsoft and tell us whether to:

        1. disable your account and then delete your Customer Data; or

        2. retain your Customer Data stored in the Online Service in a limited function account for at least 30 days after termination of your Subscription (the “retention period”) so that you may extract your Customer Data.

          • If you indicate (1), you will not be able to extract your Customer Data from your account. If you indicate (2), you will be able to extract your Customer Data via our standard processes and tools, and you will reimburse us if there are any applicable costs. If you do not indicate (1) or (2), we will retain your Customer Data in accordance with (2).

          • Following the expiration of the “retention period”, we will disable your account and then delete your Customer Data.

        3. You agree that, other than as described above, we have no obligation to continue to hold, export, or return the Customer Data. You agree that we have no liability whatsoever for deletion of your Customer Data pursuant to these terms.

  5. Confidentiality.

    We and you shall treat the design and performance of the Online Service that is accessible to you only via password protected access and any documentation or materials we make available to you under this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other. If you are a government customer, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.

  6. Warranties.

    1. No warranties. The Online Service is provided under this Agreement for use with your Subscription. No warranties are provided under this Agreement.

      DISCLAIMER OF WARRANTIES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION (i) REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT, (ii) REPRESENTATIONS OR WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (iii) REPRESENTATIONS OR WARRANTIES THAT ACCESS TO OR USE OF THE ONLINE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.

    2. FOR AUSTRALIA ONLY. YOU HAVE STATUTORY GUARANTEES UNDER THE AUSTRALIAN CONSUMER LAW AND NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS.

  7. Defense of infringement and misappropriation claims.

    1. Our agreement to protect. We will defend you against any claims made by an unaffiliated third party that the Online Service infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret. We will also pay the amount of any resulting adverse final judgment (or settlement to which we consent). This Section provides your exclusive remedy for these claims.

    2. What you must do. You must notify us promptly in writing of the claim and give us sole control over defense or settlement. You must also provide us with reasonable assistance in defending the claim. We will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance.

    3. Limitations on defense obligation. Our obligations will not apply to the extent that the claim or award is based on:

      Customer Data, code, or materials you provided as part of the use of the Online Service;

      your use of the Online Service after we notify you to discontinue that use due to a third party claim;

      your combination of the Online Service with a non-Microsoft product, data or business process;

      damages attributable to the value of the use of a non-Microsoft product, data or business process;

      modifications you make to the Online Service;

      your redistribution of the Online Service to, or use for the benefit of, any unaffiliated third party;

      your use of Microsoft’s trademark(s) without express written consent to do so; or

      any trade secret claim, where you acquire the trade secret or undisclosed information (1) through improper means; (2) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (3) from a person (other than us or our Affiliate) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret.

      You will reimburse us for any costs or damages that result from any of the above actions.

    4. Specific rights and remedies in case of infringement.

      1. Our rights in addressing possible infringement. If we receive information concerning an infringement claim related to an Online Service, we may, at our expense and without obligation to do so: (1) procure for you the right to continue to use the allegedly infringing Online Service; (2) modify the Online Service; (3) replace the Online Service with a functional equivalent, to make it non-infringing, in which case you will immediately stop using the allegedly infringing Online Service after receiving notice from us; or (4) terminate any Trial Subscriptions relating to the Online Service.

      2. Your specific remedy in case of injunction. If, as a result of an infringement claim, your use of a Online Service is enjoined by a court of competent jurisdiction, we will, at our option, either: (1) procure the right to continue its use; (2) replace it with a functional equivalent; (3) modify it to make it non-infringing; or (4) terminate any Trial Subscriptions relating to the Online Service.

  8. Limitation of liability.

    1. Limitation on liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, our and our Affiliates’ and contractors’ liability to you arising under this Agreement is limited to five United States dollars ($5.00 USD). 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, this monetary limitation will not apply to:

      Our obligations under the Section titled “Defense of infringement and misappropriation claims;”

      liability for damages awarded by a court of final adjudication for our employees’ or agents’ gross negligence or willful misconduct;

      liabilities arising out of any breach of our obligations under the Section entitled “Confidentiality”, except that our and our Affiliates’ and contractors’ liability arising out of or in relation to Customer Data shall in all cases be limited to five United States dollars ($5.00 USD); and

      liability for personal injury or death caused by our negligence or that of our employees or agents or for fraudulent misrepresentation.

    2. EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR 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 THE PARTIES’ RESPECTIVE OBLIGATIONS IN THE SECTION TITLED “DEFENSE OF INFRINGEMENT, MISAPPROPRIATION, AND THIRD PARTY CLAIMS.”

  9. Verifying compliance.

    During the Term of this Agreement and for three years thereafter, you must keep all usual and proper records relating to the Agreement and your use of the Online Service under this Agreement. We may request that you conduct an internal audit of the Online Service in use throughout your organization By requesting an audit, we do not waive our rights to enforce this Agreement or to protect Microsoft intellectual property by any other means permitted by law.

  10. Miscellaneous.

    1. Notices to us. You must send notices, authorizations, and requests in connection with this Agreement by regular or overnight mail, or express courier, to the addresses listed below. We will treat notices as delivered on the date shown on the return receipt. You must terminate the Agreement via the Portal.

       

      Notices should be sent to: Copies should be sent to:

      Microsoft Corporation

      System Center Advisor

      Management and Security Business Group

      One Microsoft Way

      Redmond, WA 98052

      USA

      Microsoft Corporation

      Legal and Corporate Affairs for System Center Advisor

      One Microsoft Way

      Redmond, WA 98052

      USA

    2. Electronic notices to you. We may provide you with information about the Online Service in electronic form. It may be via email to the address you provide when you sign up for the Online Service (as you may update via the Portal) or through a web site that we identify. Notice via email is given as of the transmission date. As long as you use the Online Service, you have the software and hardware needed to receive these notices. You may not use the Online Service if you do not agree to receive these electronic notices. In addition, various service communications may be sent via email to account administrators you identify and may update via the Portal.

    3. Assignment. You may not assign this Agreement. We may assign this Agreement to our Affiliates.

    4. Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the Agreement will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.

    5. Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.

    6. Applicable law. This Agreement is governed by the laws of the State of Washington without regard to its conflict of laws principles, except that (1) if you are a U.S. Government entity, this Agreement is governed by the laws of the United States, and (2) if you are a state or local government entity in the United States, this Agreement is governed by the laws of that state. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The Online Service is protected by copyright and other intellectual property rights laws and international treaties.

    7. Dispute resolution. Any action to enforce this Agreement must be brought in the State of Washington, USA. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. If you are a U.S. Government or state or local government entity, this Section does not apply and jurisdiction and venue will be determined by applicable law.

    8. This Agreement is not exclusive. You are free to enter into agreements to license, use or promote non-Microsoft software or services.

    9. Entire agreement. This Agreement constitutes the entire agreement concerning the subject matter and supersedes any prior or contemporaneous communications.

    10. Survival. Provisions regarding ownership, fees, feedback, restrictions on use, transfer of licenses, export restrictions, warranties, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled “Miscellaneous” will survive termination of this Agreement.

    11. No transfer of ownership. We do not transfer any ownership rights in any Online Service or any portion or component thereof. We reserve all rights not specifically granted in this Agreement. The Online Service is protected by copyright and other intellectual property rights laws and international treaties.

    12. Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Service).

    13. U.S. export jurisdiction. The Online Service is subject to U.S. export jurisdiction. You must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.

    14. Natural disaster. In the event of a natural disaster, we may post information or provide additional assistance or rights on http://www.microsoft.com.

    15. Independent contractors. You and we are independent contractors for all purposes regarding this Agreement. You do not have any agency, franchise or fiduciary relationship with us under this Agreement.

    16. No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

    17. English language controls. The English language version of this Agreement controls. If you are in Canada, it is the express wish of the parties that this Agreement and any related documents, be written and signed in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

  11. Additional Licensing Requirements

    1. For clarity, this provision is in addition to the terms of Section 2.c. governing Supplemental Software.

    2. Updates to Supplemental Software. If you have opted into Microsoft Update, the Supplemental Software will be updated automatically. For more information on how the Supplemental Software updates see: http://go.microsoft.com/fwlink/?LinkID=195849.

    3. INTERNET-BASED SERVICES. Microsoft provides Internet-based services with the Supplemental Software. It may change or cancel them at any time.

      1. Consent for Internet-Based Services. The software feature described below connects to Microsoft or service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. By using these features, you consent to the transmission of this information. Microsoft does not use the information to identify or contact you. You can find out more by visiting the Microsoft System Center Advisor Privacy Statement at http://go.microsoft.com/fwlink/?LinkID=195849.

      2. Computer Information. The following features use Internet protocols, which send to the appropriate systems computer information, such as your Internet protocol address, the type of operating system, browser and name and version of the Supplemental Software you are using, and the language code of the device where you installed the Supplemental Software. Microsoft uses this information to make the Internet-based service available to you.

        Automatic Updates for Microsoft Software.  If you have opted into Microsoft Update, the Supplemental Software will be updated automatically. For more information on how the Supplemental Software updates see: http://go.microsoft.com/fwlink/?LinkID=195849

        Misuse of Internet-based Services. You may not use this service in any way that could harm or impair anyone else’s use of it. You may not use the service to try to gain unauthorized access to any service, data, account or network by any means.

    4. Scope of License. The Supplemental Software is licensed, not sold. This Agreement only gives you some rights to use the Supplemental Software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the Supplemental Software only as expressly permitted in this Agreement. In doing so, you must comply with any technical limitations in the Supplemental Software that only allow you to use it in certain ways. You may not

      • work around any technical limitations in the Service Software;

      • reverse engineer, decompile or disassemble the Service Software, except and only to the extent that applicable law expressly permits, despite this limitation;

      • make more copies of the Service Software than specified in this Agreement or allowed by applicable law, despite this limitation;

      • publish the Service Software for others to copy;

      • rent, lease or lend the Service Software;

      • transfer the Service Software or this Agreement to any third party; or

      • use the Service Software for commercial software hosting services.