Microsoft Online Subscription
Agreement
This Microsoft Online Subscription Agreement is
between the entity you represent, or, if you do not designate an entity in
connection with a Subscription purchase or renewal, you individually (“you” or
“your”), and Microsoft Corporation (“Microsoft”, “we”, “us”, or “our”). It
consists of the terms and conditions below, as well as the Online Services
Terms, the SLAs, and the Offer Details for your Subscription or renewal
(together, the “agreement”). It is effective on the date we provide you with
confirmation of your Subscription or the date on which your Subscription is
renewed, as applicable. Key terms are defined in
Section 8.
1.
Use of Online
Services.
a.
Right to
use. We grant you the right to access
and use the Online Services and to install and use the Software included with
your Subscription, as further described in this agreement. We reserve all other
rights.
b. Acceptable use. You may use the Product only in accordance with this
agreement. You may not reverse engineer, decompile, disassemble, or work around
technical limitations in the Product, except to the extent applicable law
permits it despite these limitations. You may not disable, tamper with, or
otherwise attempt to circumvent any billing mechanism that meters your use of
the Online Services. You may not rent, lease, lend, resell, transfer, or host
the Product, or any portion thereof, to or for third parties except as expressly
permitted in this agreement or the Online Services Terms.
c.
End Users.
You control access by End Users, and you are responsible for their use of the
Product in accordance with this agreement. For example, you will ensure End
Users comply with the Acceptable Use Policy.
d. Customer Data. You are solely responsible for the content of all
Customer Data. You will secure and maintain all rights in Customer Data
necessary for us to provide the Online Services to you without violating the
rights of any third party or otherwise obligating Microsoft to you or to any
third party. Microsoft does not and will not assume any obligations with respect
to Customer Data or to your use of the Product other than as expressly set forth
in this agreement or as required by applicable law.
e.
Responsibility for your accounts. You are responsible for maintaining the
confidentiality of any non-public authentication credentials associated with
your use of the Online Services. You must promptly notify our customer support
team about any possible misuse of your accounts or authentication credentials or
any security incident related to the Online Services.
f.
Preview releases. We may make Previews available. Previews are provided “as-is,” “with all
faults,” and “as-available,” and are excluded from the SLAs and all limited
warranties provided in this agreement. Previews may not be covered by
customer support. We may change or discontinue Previews at any time without
notice. We also may choose not to release a Preview into general availability.
g. Managed Services for Microsoft Azure. You may use Microsoft Azure Services to provide a
Managed Service Solution provided (1) you have the sole ability to access,
configure, and administer the Microsoft Azure Services, (2) you have
administrative access to the virtual OSE(s), if any, in the Managed Service
Solution, and (3) the third party has administrative access only to its
application(s) or virtual OSE(s). You are responsible for the third party’s use
of Microsoft Azure Services in accordance with the terms of this agreement. Your
provision of Managed Services remains subject to the following limitations (and
any other limitations in the Online Services Terms):
(i) you may not
resell or redistribute the Microsoft Azure Services, and
(ii) you may not
allow multiple users to directly or indirectly access any Microsoft Azure
Services feature that is made available on a per-user basis.
h. Administrator Assumption of Control. If you use an email address provided by an
organization you are affiliated with (e.g. an employer or school) to order an
Online Service individually, you represent that you have authority to use that
organization’s domain to sign up for a Subscription in your capacity as a member
of that organization. The organization, as the owner of the domain associated
with your email address, may assume control over and manage your use of the
Online Services. In such a case, your organization’s designated administrator
(your “admin”) may (i) control and administer your account, including modifying
and terminating your access and (ii) access and process your data, including the
contents of your communications and files. Microsoft may inform you that your
organization has assumed control of the Online Services covered by your
Subscription, but Microsoft is under no obligation to provide such notice. If
your organization is administering your use of the Online Services or managing
the tenant associated with your Subscription, direct your data subject requests
and privacy inquiries to your administrator. If your organization is not
administering your use of the Online Service or managing such tenant, direct
your data subject requests and privacy inquiries to
Microsoft.
i.
Shared Directory Data. When you order an Online Service using an email
address with a domain provided by an organization you are affiliated with (e.g.
an employer or school), the Online Service adds you to a directory of users that
share the same email domain. Your directory data (name, date of signup, and
email address) may be visible to other users of Online Services within your
organization’s email domain.
j.
Additional Software for use with the Online Services.
To enable optimal access to and use
of certain Online Services, you may install and use certain Software in
connection with your use of the Online Service as described in the Online
Services Terms. We license Software to you; we do not sell it. Proof of your
Software license is (1) this agreement, (2) any order confirmation,
and (3) proof of payment. Your rights to access Software on any device do
not give you any right to implement Microsoft patents or other Microsoft
intellectual property in software or devices that access that
device.
2.
Purchasing
services.
a.
Available Subscription offers. The Portal provides Offer Details for available
Subscription offers, which generally can be categorized as one or a combination
of the following:
(i) Commitment Offering. You commit in advance to purchase a specific quantity
of Online Services for use during a Term and to pay upfront or on a periodic
basis in advance of use. With respect to Microsoft Azure Services, additional or
other usage (for example, usage beyond your commitment quantity) may be treated
as a Consumption Offering. Committed quantities not used during the Term will
expire at the end of the Term.
(ii) Consumption Offering (also called
Pay-As-You-Go). You pay based on
actual usage in the preceding month with no upfront commitment. Payment is on a
periodic basis in arrears.
(iii)
Limited Offering. You receive a limited quantity of Online Services for
a limited term without charge (for example, as a trial Subscription or free
account) or as part of another Microsoft offering (for example, MSDN).
Provisions in this agreement with respect to pricing, cancellation fees,
payment, and data retention may not apply.
b. Ordering.
(i) By ordering
or renewing a Subscription, you agree to the Offer Details for that
Subscription. Unless otherwise specified in those Offer Details, Online Services
are offered on an “as available” basis. You may place orders for your Affiliates
under this agreement and grant your Affiliates administrative rights to manage
the Subscription, but Affiliates may not place orders under this agreement. You
also may assign the rights granted under Section 1.a. to a third party for use
by that third party in your internal business. If you grant any rights to
Affiliates or third parties with respect to Software or your Subscription, such
Affiliates or third parties will be bound by this agreement and you agree to be
jointly and severally liable for any actions of such Affiliates or third parties
related to their use of the Products.
(ii) Some offers
may permit you to modify the quantity of Online Services ordered during the Term
of a Subscription. Additional
quantities of Online Services added to a Subscription will expire at the end of
that Subscription. If you decrease the quantity during a Term, we may charge you
a cancellation fee for the decrease in quantity as described below in Section
3.b..
c.
Pricing and payment. Payments are due and must be made according to the
Offer Details for your Subscription.
(i) For
Commitment Offerings, the price level may be based on the quantity of Online
Services you ordered. Some offers may permit you to modify the quantity of
Online Services ordered during the Term and your price level may be adjusted
accordingly, but price level changes will not be retroactive. During the Term of
your Subscription, prices for Online Services will not be increased, as to your
Subscription, from those posted in the Portal at the time your Subscription
became effective or was renewed, except where prices are identified as temporary
in the Offer Details, or for Previews or Non-Microsoft Products. All prices are
subject to change at the beginning of any Subscription
renewal.
(ii) For
Consumption Offerings, pricing is subject to change at any time upon
notice.
d. Renewal.
(i) Upon renewal
of your Subscription, this agreement will terminate, and your Subscription will
thereafter be governed, by the terms and conditions set forth in the Portal on
the date on which your Subscription is renewed (the “Renewal Terms”). If you do
not agree to any Renewal Terms, you may decline to renew your
Subscription.
(ii) For
Commitment Offerings, you may choose to have a Subscription automatically renew
or terminate upon expiration of the Term. Automatic renewal is pre-selected. You
can change your selection at any time during the Term. If the existing Term is
longer than one calendar month, we will provide you with notice of the automatic
renewal before the expiration of the Term.
(iii)
For
Consumption Offerings, your Subscription will renew automatically for additional
one-month terms until you terminate the Subscription.
(iv)
For Limited
Offerings, renewal may not be permitted.
e.
Eligibility for Academic, Government and Nonprofit
versions. You agree that if you are
purchasing an academic, government or nonprofit offer, you meet the respective
eligibility requirements listed at the following sites:
(i) For academic offers, the
requirements for educational institutions (including administrative offices or
boards of education, public libraries, or public museums) listed at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=7;
(ii)
For
government offers, the requirements
listed at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=6; and
(iii)
For
nonprofit offers, the requirements listed at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=19.
Microsoft reserves the
right to verify eligibility at any time and suspend the Online Service if the
eligibility requirements are not met.
f.
Taxes.
Prices are exclusive of any taxes unless otherwise specified on the invoice as
tax inclusive. You must pay any applicable value added, goods and services,
sales, gross receipts, or other transaction taxes, fees, charges or surcharges,
or any regulatory cost recovery surcharges or similar amounts that are owed
under this agreement and which we are permitted to collect from you under
applicable law. You will be responsible for any applicable stamp taxes and for
all other taxes that you are legally obligated to pay including any taxes that
arise on the distribution or provision of Products to your Affiliates. We will
be responsible for all taxes based on our net income, gross receipts taxes
imposed in lieu of taxes on income or profits, or taxes on our property
ownership.
If any taxes are required to be withheld on payments
you make to us, you may deduct such taxes from the amount owed to us and pay
them to the appropriate taxing authority; provided, however, that you promptly
secure and deliver an official receipt for those withholdings and other
documents we reasonably request to claim a foreign tax credit or refund. You
must ensure that any taxes withheld are minimized to the extent possible under
applicable law.
3.
Term,
termination, and suspension.
a.
Agreement
term and termination. This agreement
will remain in effect until the expiration, termination, or renewal of your
Subscription, whichever is earliest.
b. Subscription termination. You may terminate a Subscription at any time during
its Term; however, you must pay all amounts due and owing before the termination
is effective.
(i) One-Month
Subscription. A Subscription having a
one-month Term may be terminated anytime without any cancellation
fee.
(ii) Subscriptions of more than one-month. If you
terminate a Subscription to Microsoft Azure Services within 30 days of the date
on which the Subscription became effective or was renewed, no refunds will be
provided, and you must pay for the initial 30 days of the Subscription, but no
payments will be due for the remaining portion of the terminated Subscription.
If you terminate a Subscription to Microsoft Azure Services at any other time
during the term, you must pay for the remainder of the Term, and no refunds will
be provided.
(iii)
Limited
Offerings. Microsoft
may terminate your Subscription to a Limited Offering at any time during the
Term immediately without notice.
(iv)
Other Subscriptions. For all other Subscriptions, if you terminate a
Subscription before the end of the Term, you must pay a fee equal to one-month’s
Subscription fee and you will receive a refund of any portion of the
Subscription fee you have paid for the remainder of the Term; provided, however,
no refunds will be provided for partially unused months.
c.
Suspension. We may suspend your use of the Online Services if:
(1) it is reasonably needed to prevent unauthorized access to Customer
Data; (2) you fail to respond to a claim of alleged infringement under
Section 5 within a reasonable time; (3) you do not pay amounts due
under this agreement; (4) you do not abide by the Acceptable Use Policy or
you violate other terms of this agreement; or (5) for Limited Offerings, the
Subscription becomes inactive from your failure to access the Online Services as
described in the Offer Details. If one or more of these conditions occurs,
then:
(i) For Limited
Offerings, we may suspend your use of the Online Services, your Subscription and
your account immediately without notice.
(ii) For all other
Subscriptions, a suspension will apply to the minimum necessary part of the
Online Services and will be in effect only while the condition or need exists.
We will give notice before we suspend, except where we reasonably believe we
need to suspend immediately. We will give at least 30 days' notice before
suspending for non-payment. If you do not fully address the reasons for the
suspension within 60 days after we suspend, we may terminate your Subscription
and delete your Customer Data without any retention period. We may also
terminate your Subscription if your use of the Online Services is suspended more
than twice in any 12-month period.
4.
Warranties.
a.
Limited
warranty.
(i) Online
Services. We warrant that the Online
Services will meet the terms of the SLA during the Term. Your only remedies for breach of this
warranty are those in the SLA.
(ii) Software.
We warrant for one year from the date you first use the Software that it will
perform substantially as described in the applicable user documentation. If
Software fails to meet this warranty we will, at our option and as your
exclusive remedy, either (1) return the price paid for the Software or (2)
repair or replace the Software.
b. Limited
warranty exclusions. This limited
warranty is subject to the following limitations:
(i) any implied
warranties, guarantees or conditions not able to be disclaimed as a matter of
law will last one year from the start of the limited
warranty;
(ii) this limited
warranty does not cover problems caused by accident, abuse or use of the
Products in a manner inconsistent with this agreement or our published
documentation or guidance, or resulting from events beyond our reasonable
control;
(iii)
this limited
warranty does not apply to problems caused by a failure to meet minimum system
requirements; and
(iv)
this limited
warranty does not apply to Previews or Limited Offerings.
c.
DISCLAIMER. Other than this warranty, we provide no
warranties, whether express, implied, statutory, or otherwise, including
warranties of merchantability or fitness for a particular purpose. These
disclaimers will apply except to the extent applicable law does not permit
them.
5.
Defense of
claims.
a.
Defense.
(i) We will
defend you against any claims made by an unaffiliated third party that a Product
infringes that third party’s patent, copyright or trademark or makes unlawful
use of its trade secret.
(ii) You will
defend us against any claims made by an unaffiliated third party that
(1) any Customer Data, Customer Solution, or Non-Microsoft Products, or
services you provide, directly or indirectly, in using a Product infringes the
third party’s patent, copyright, or trademark or makes unlawful use of its trade
secret; or (2) arises from violation of the Acceptable Use
Policy.
b. Limitations. Our
obligations in Section 5.a. will not apply to a claim or award based on:
(i) any Customer Solution, Customer Data, Non-Microsoft Products, modifications you make
to the Product, or services or materials you provide or make available as part
of using the Product; (ii) your combination of the Product with, or damages
based upon the value of, Customer Data or a Non-Microsoft Product, data, or
business process; (iii)
your use of a Microsoft trademark without
our express written consent, or your use of the Product after we notify you to
stop due to a third-party claim; (iv) your redistribution of the Product to, or
use for the benefit of, any unaffiliated third party; or (v) Products provided
free of charge.
c.
Remedies.
If we reasonably believe that a claim
under Section 5.a.(i). may bar your use of the Product, we will seek to:(i) obtain the right for you to keep using it; or (ii) modify or
replace it with a functional equivalent and notify you to stop use of the prior
version of the Product. If these options are not commercially reasonable, we may
terminate your rights to use the Product and then refund any advance payments
for unused Subscription rights.
d. Obligations. Each party must notify the other promptly of a claim
under this Section. The party seeking protection must (i) give the other sole
control over the defense and settlement of the claim; and (ii) give reasonable
help in defending the claim. The party providing the protection will (1)
reimburse the other for reasonable out-of-pocket expenses that it incurs in
giving that help and (2) pay the
amount of any resulting adverse final judgment or settlement. The parties’ respective rights to defense and payment
of judgments (or settlement the other consents to) under this Section 5 are in
lieu of any common law or statutory indemnification rights or analogous rights,
and each party waives such common law or statutory rights.
6.
Limitation of
liability.
a.
Limitation. The aggregate liability of each party for all claims
under this agreement is limited to direct damages up to the amount paid under
this agreement for the Online Service during the 12 months before the cause of
action arose; provided, that in no event will a party’s aggregate liability for
any Online Service exceed the amount paid for that Online Service during the
Subscription. For Products provided free of charge, Microsoft’s liability is
limited to direct damages up to $5,000.00 USD.
b. EXCLUSION.
Neither party will be liable for loss of revenue or indirect, special,
incidental, consequential, punitive, or exemplary damages, or damages for lost
profits, revenues, business interruption, or loss of business information, even
if the party knew they were possible or reasonably
foreseeable.
c.
Exceptions
to limitations. The limits of liability in
this Section apply to the fullest extent permitted by applicable law, but do not
apply to: (1) the parties' obligations under Section 5; or (2) violation of
the other's intellectual property rights.
7.
Miscellaneous.
a.
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:
Microsoft Corporation
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 89511-1137
USA
Notices to you will be sent to the address that you
identify on your account as your contact for notices. Microsoft may send notices
and other information to you by email or other electronic
form.
b. License
Transfers and Assignment. You may not
assign this agreement either in whole or in part or transfer licenses without
Microsoft’s consent.
c.
Consent to
partner fees. When you place an
order, you may be given the opportunity to identify a “Partner of Record”
associated with your Subscriptions. By identifying a Partner of Record, directly
or by authorizing a third party to do so, you consent to our paying fees to the
Partner of Record. The fees are for pre-sales support and may also include
post-sales support. The fees are based on, and increase with, the size of your
order. Our prices for Online Services are the same whether or not you identify a
Partner of Record.
d. Severability. If any part of this agreement is held unenforceable,
the rest remains in full force and effect.
e.
Waiver.
Failure to enforce any provision of this agreement will not constitute a
waiver.
f.
No agency.
This
agreement does not create an agency, partnership, or joint
venture.
g. No
third-party beneficiaries. There are no third-party
beneficiaries to this agreement.
h. Applicable
law and venue. This agreement is
governed by Washington law, without regard to its conflict of laws principles,
except that (i) if you are a U.S. Government entity, this agreement is governed
by the laws of the United States, and (ii) if you are a state or local
government entity in the United States, this agreement is governed by the laws
of that state. Any action to enforce this agreement must be brought in the State
of Washington. This choice of jurisdiction does not prevent either party from
seeking injunctive relief in any appropriate jurisdiction with respect to a
violation of intellectual property rights.
i.
Entire
agreement. This agreement is the
entire agreement concerning its subject matter and supersedes any prior or
concurrent communications. In the case of a conflict between any documents in
this agreement that is not expressly resolved in those documents, their terms
will control in the following order of descending priority: (1) this Microsoft
Online Subscription Agreement, (2) the Online Services Terms, (3) the applicable
Offer Details, and (4) any other documents in this
agreement.
j.
Survival.
The terms in Sections 1, 2.c., 2.e., 4, 5, 6, 7, and 8 will survive termination
or expiration of this agreement.
k.
U.S.
export jurisdiction. The Products are
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, and end-user, end-use and destination restrictions issued
by U.S. and other governments.
l.
Force majeure. Neither party will be liable for any failure in
performance due to causes beyond that 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 Services)). This Section will not, however, apply to your payment
obligations under this agreement.
m. Contracting authority. If you are an individual accepting these terms on
behalf of an entity, you represent that you have the legal authority to enter
into this agreement on that entity’s behalf. If you specify an entity, or you
use an email address provided by an entity you are affiliated with (such as an
employer) in connection with a Subscription purchase or renewal, that entity
will be treated as the owner of the Subscription for purposes of this
agreement.
n. Government customers. Government customers should consult with Microsoft
prior to acceptance. By accepting
this agreement, you represent that you have complied and will continue to comply
with all applicable laws and governmental procurement requirements.
8.
Definitions.
Any reference in this agreement to “day” will be a
calendar day.
“Acceptable Use Policy” is set forth in the Online
Services Terms.
“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.
“Consumption Offering”, “Commitment Offering”, or
“Limited Offering” describe categories of Subscription offers and are defined in
Section 2.
“Customer Data” is defined in the Online Services
Terms.
“Customer Solution” is defined in the Online Services
Terms.
“End User” means any person you permit to access
Customer Data hosted in the Online Services or otherwise use the Online
Services, or any user of a Customer Solution.
“Managed
Service Solution” means a managed IT service you provide to a third party that
consists of the administration of and support for Microsoft Azure
Services.
“Microsoft Azure Services” is defined in the Online
Services Terms.
“Non-Microsoft Product” is defined in the Online
Services Terms.
“Offer Details” means the pricing and related terms
applicable to a Subscription offer, as published in the
Portal.
“Online Services” means any of the Microsoft-hosted
services to which you subscribe under this agreement.
“Online Services Terms” means the terms that apply to
your use of the Products available at https://www.microsoft.com/en-us/Licensing/product-licensing/products.aspx. The Online Services Terms include terms governing
your use of Products that are in addition to the terms in this
agreement.
“Previews” means preview, beta, or other pre-release
version or feature of the Online Services or Software offered by Microsoft to
obtain customer feedback.
“Portal” means the Online Services’ respective web
sites that can be found at https://products.office.com/en-us/home, http://azure.microsoft.com/en-us/pricing/, or at an alternate website we
identify.
“Product” means any Online Service (including any
Software).
“SLA” means the commitments we make regarding delivery
and/or performance of an Online Service, as published at http://aka.ms/csla,
http://azure.microsoft.com/en-us/support/legal/sla/,
or at an alternate site that we
identify.
“Software” means Microsoft software we provide for
installation on your device as part of your Subscription or to use with the
Online Service to enable certain functionality.
“Subscription” means an enrollment for Online Services
for a defined Term as specified on the Portal. You may purchase multiple
Subscriptions, which may be administered separately, and which will be governed
by the terms of a separate Microsoft Online Subscription
Agreement.
“Term” means the duration of a Subscription (e.g., 30
days or 12 months).