Microsoft Online Subscription Agreement
This Microsoft Online Subscription Agreement is between the party accepting this agreement and Microsoft Ireland Operations Limited (“Microsoft”) and consists of the below terms and conditions, the Acceptable Use Policy, the Online Services Use Rights, the SLA and the pricing and payment terms listed on the Portal. It is effective on the date we provide you with confirmation of your first order. Key terms are defined in Section 10.
a. Right to Use. We grant you the right to access and use the Online Services and to install and use Software included with your Subscription, as further described in this agreement. We reserve all other rights.
b. Acceptable Use. You will use the Product only per the Acceptable Use Policy. You may not reverse engineer, decompile, disassemble or work around technical limitations in the Product, except where applicable law permits it despite this limitation. You may not rent, lease, lend, resell, transfer, or host any Product to or for third parties.
c. Eligibility for Academic and Government versions. You agree that if you are purchasing an academic or government offer, you meet the respective eligibility requirements as an educational institution (including administrative offices or boards of education, a public library, or a public museum) listed at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=7 or as an entity that meets government eligibility requirements listed at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=6. Microsoft reserves the right to verify eligibility at any time and suspend the Online Service if such eligibility requirements are not met.
You agree that you shall treat the design and performance of the Online Services that are 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, and similar laws.
a. Orders and pricing. You can place an Order on the Portal for a Standard Offering, Consumption Offering or a Combination Offering:
(i) For Standard Offerings, you may increase or decrease the quantity of Product ordered during the Term except for a Subscription you purchased through a subscription card outside the Portal. Seats added to a Subscription will expire at the end of the original Term. If you decrease the quantity during a Term, we may charge you a cancellation fee for the decrease in quantity as described below in the section titled “Subscription Termination.”
(ii) You may place Orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage their Products, however, Affiliates may not place Orders under this agreement. You also may assign a third party a license to Software or a right to access and use the Online Service for use by that third party in your internal business. If you grant any rights to Affiliates or third parties, such Affiliates and third parties shall 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.
b. Pricing and Payment. Payments are due and must be made according to pricing and the payment terms on the Portal. For Standard Offerings, the price level will be based on your Order quantity for a given Product. Your price level may be adjusted if the quantity of Product in the Subscription is increased or decreased during the Term and you qualify for a different price level (except for a Subscription you purchased through a subscription card outside the Portal in which case the price is fixed to the value of the subscription card). Price level changes are not retroactive and changes in the payment due for a Subscription will be pro-rated. Prices are fixed at the time the Order is first placed and apply throughout the Term but are subject to change at the beginning of any Subscription renewal. For Consumption Offerings, the pricing and rate schedules will be based on actual usage and subject to change at any time upon notice. With respect to any offerings available free of charge, provisions in this agreement with respect to pricing, cancellation fees and payment do not apply.
(i) For Standard 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 written notice of the automatic renewal before the expiration of the Term.
(ii) For Consumption Offerings, the pricing and rate schedules will be based on actual usage and subject to change at any time upon notice.
(iii) Trial Subscriptions cannot be renewed.
d. Taxes. Prices are exclusive of any taxes. You shall pay any applicable value added, goods and services, sales, or like taxes that are owed with respect to any Order placed under this agreement and which we are permitted to collect from you under applicable law. You shall 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 shall be responsible for all taxes based upon our net income or 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 will make certain that any taxes withheld are minimized to the extent possible under applicable law.
e. Term and termination. This agreement will remain in effect unless you terminate it by calling customer support or otherwise described on the Portal except for trials which automatically terminate. Termination will only terminate your right to renew Subscriptions under an existing Order or place new Orders for additional Products under this agreement.
f. 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 with a one month Term may be terminated anytime without any fee.
(ii) One Year Subscription. If you terminate a Subscription with a one year Term within 30 days of the date on which the Subscription became effective or was renewed, you must pay for the initial 30 days of the Subscription. No payments will be due for the terminated portion of the Subscription. If you terminate a Subscription at any other time during the Term, you must pay 25% of the Subscription fee otherwise due for the remainder of the one year Term. The foregoing does not apply to termination of a Subscription you purchased through a subscription card outside the Portal, for which no refund will be provided by Microsoft.
(iii) Effect of termination or expiration on Software. If this agreement or a Subscription is terminated or expires and you do not exercise an available buy-out option for your Software, then you must delete all copies of Software licensed under this agreement, destroy any associated media and provide written certification of such deletion and destruction.
g. Suspension. We may suspend your use of the Online Services if: (1) you fail to respond to a claim of alleged infringement under Section 5 within a reasonable time; (2) you do not pay amounts due under this agreement; or (3) you violate the Acceptable Use Policy. 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.
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 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 resulting from events beyond our reasonable control;
(iii) this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
(iv) this limited warranty does not apply to free, trial, pre-release or beta Products.
c. DISCLAIMER. OTHER THAN THIS WARRANTY, WE PROVIDE NO EXPRESS OR IMPLIED 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.
a. Defense. We will defend you against any claims made by an unaffiliated third party that the Product infringes its patent, copyright or trademark or makes unlawful use of its trade secret. You will defend us against any claims made by an unaffiliated third party that any Customer Data or non-Microsoft software you provide directly or indirectly in using the Product infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret violates the Acceptable Use Policy.
b. Limitations. Our obligations in Section 5a won’t apply to a claim or award based on: (1) Customer Data, non-Microsoft software, modifications you make to the Product, or materials you provide or make available as part of using the Product; (2) your combination of the Product with, or damages based upon the value of, a non-Microsoft product, Customer Data or business process; (3) 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; or (4) your redistribution of the Product to, or use for the benefit of, any unaffiliated third party.
c. Remedies. If we reasonably believe that a claim under Section 5a may bar your use of the Product, we will seek to: (1) obtain the right for you to keep using it; or (2) 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 (1) give the other sole control over the defense and settlement of the claim; and (2) 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 that the other consents to). The parties’ respective rights to defense and payment of judgments or settlements 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.
a. Limitation. The aggregate liability of each party under this agreement is limited to direct damages up to (1) for Software, the amount you were required to pay for the Software giving rise to that liability (2) for Online Services the amount paid under this agreement for the Online Service giving rise to that liability during the 12 months before the liability arose and (3) for Products provided free of charge, Five Thousand United States dollars ($5,000.00 USD).
b. EXCLUSION. NEITHER PARTY WILL BE LIABLE FOR LOSS OF REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF THE PARTY KNEW THEY WERE POSSIBLE.
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.
During the Term and for three years thereafter, you must keep all usual and proper records relating to the Subscription(s) and your use of Products. We may request that you conduct an internal audit of all Products that you are using, comparing the number of Subscriptions in use to the number of Subscriptions issued to and/or paid for by you. By requesting an audit, we do not waive our rights to enforce this agreement or to protect our intellectual property by any other means permitted by law.
If verification or self-audit reveals any unlicensed use, you must promptly order sufficient licenses to cover your past and present use. If material unlicensed use is found, you must reimburse us for the costs we incurred in verification and acquire the necessary additional licenses at retail license cost within 30 days.
a. Licenses purchased. We grant you licenses for the number of copies of Software you ordered. We also grant you the right to use a prior (older) version of your Software in place of the version you license if we specify this right in the Online Services Use Rights.
b. Additional Software for use with the Online Services. To enable optimal access and use of certain Online Services, you may install and use certain Software in connection with your use of the Online Service. The number of copies of the Software you will be permitted to use or the number of devices on which you will be permitted to use the Software will be as described in the Online Service Use Rights in the product specific license terms for the Online Service. We may check the version of the Software you are using and recommend or download updates, with or without notice, to your devices. Failure to install updates may affect your ability to use certain functions of the Online Service. You must uninstall the Software when your right to use it ends. We may also disable it at that time.
c. When licenses become perpetual. Unless you obtain perpetual licenses under a buy-out option, a license to Software obtained under this agreement lasts only for the Term. Any references in the Online Services Use Rights to running Software on a perpetual basis apply only if you paid for perpetual licenses.
d. License confirmation. Proof of your Software license is (1) this agreement, (2) any Order confirmation, (3) documentation evidencing license transfers (for any permitted transfers), and (4) proof of payment.
e. License rights are not related to fulfillment of Software media. Your acquisition of Software media or access to a network source does not affect your license to Software obtained under this agreement. We license Software to you, we do not sell it.
f. Copies. You may make as many copies of the Software as you need to internally distribute them provided that you have a valid license for each such copy. Copies you make of Software 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 must use reasonable efforts to inform anyone you allow to use the Software that it is licensed from us and subject to the terms of this agreement.
g. Right to re-image Software. In certain cases, you may re-image a Software on a device by using the Software media. If you acquired the Software (1) from an original equipment manufacturer (OEM), (2) as full packaged Software through a retail source, or (3) under another Microsoft program, you may use the media provided to you under this agreement to create images for use in place of copies provided through that separate source. You have this right provided that:
(i) You have a valid license from the separate source for each copy of the Software that is re-imaged;
(ii) The Software, language, version, and components of the copies are identical to the software product, language, version, and all components of the copies they replace and the number of copies or instances of the re-imaged Software permitted remains the same;
(iii) Except for copies of an operating system and copies of Software licensed under another Microsoft program, the Software type (e.g., upgrade or full license) is identical to the Software type from the separate source;
(iv) You comply with any specific requirements for re-imaging identified in the Online Services Use Rights; and
(v) You agree that images made under this subsection remain subject to the terms and use rights provided with the Software from the separate source.
This subsection does not create or extend any warranty or support obligation.
h. Transferring and assigning licenses. License transfers are not permitted, except that you may transfer fully-paid perpetual licenses to:
(i) an Affiliate; or
(ii) a third party solely in connection with the transfer of hardware or employees to whom the licenses have been assigned as part of (1) a divestiture of an Affiliate or a division of an Affiliate or (2) a merger involving Customer or an Affiliate.
You must notify Microsoft of a transfer of license by completing a transfer notice form, which can be obtained from http://www.microsoft.com/licensing/contracts and send the completed form to Microsoft before the license transfer. No License transfer will be valid unless you provide to the transferee, and the transferee accepts in writing, the applicable Online Service Use Rights, use restrictions, limitations of liability (including exclusions and warranty provisions), and the transfer restrictions described in this section. Any license transfer not made in compliance with this section will be void.
i. Qualifying desktop operating system license. Licenses for desktop operating system software available under this agreement are upgrade licenses only (“OS Upgrade Licenses”), not full licenses. All your computers that will run OS Upgrade Licenses must be licensed to run one of the full qualifying desktop operating systems identified in the Online Services Use Rights.
You may internally reassign OS Upgrade Licenses from the original computer to a replacement computer within your entity, so long as (1) the replacement computer is licensed to run a full qualifying operating system identified in the Online Services Use Rights, (2) you remove any OS Upgrade License software from the original computer, and (3) that reassignment is not within 90 days of the last reassignment.
a. Notices. You must send notices by mail to the address below.
Notices should be sent to:
Copies should be sent to:
Microsoft Ireland Operations Limited
Atrium Block B
Sandyford Industrial Estate
Dublin 18, Ireland
Legal and Corporate Affairs
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
Via Facsimile: (425) 936-7329
We may email notices to account administrators you identify. Notices are effective on the date on the return receipt or, for email, when sent.
b. Assignment. You may not assign this agreement either in whole or in part.
c. Consent to partner fees. When you place an Order, you may 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 us 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 Products 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. We are independent contractors. 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 the laws of Ireland. If we bring an action to enforce this agreement, we will bring it in the jurisdiction where you have your headquarters. If you bring an action to enforce this agreement, you will bring it in Ireland. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to 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.
j. Survival. The following provisions will survive this agreement’s termination or expiration: 1c and f, 3d and f, 4-6, 9h, i, j, k, and 10. This agreement will remain in effect for any Subscription Term.
k. U.S. export jurisdiction. The Product 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, and end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
l. 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 Services)). This section will not, however, apply to your payment obligations under this agreement.
m. Publicity. Microsoft may publicly disclose (orally and in writing) that you are a customer of Microsoft and a purchaser of the Product(s), including in a list of Microsoft customers and other promotional materials.
n. Waiver of right to void online purchases. To the maximum extent permitted by applicable law, you waive your rights to void purchases under this agreement pursuant to any law governing distance selling or electronic or online agreements, as well as any right or obligation regarding prior information, subsequent confirmation, rights of withdrawal, or cooling-off periods.
"Acceptable Use Policy" is set forth in the Online Services Use Rights or as otherwise made prominently available by Microsoft.
“Affiliate” means any legal entity that a party owns, or that owns a party, with a 50% or greater interest.
“Combination Offering” means a Subscription that is a combination of a Standard Offering and a Consumption Offering.
“Consumption Offering” means that you pay based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears.
“Customer Data” means all data, including all text, sound, software, or image files that you provided, or are provided on your behalf, to us through your use of the Online Services. “Online Service” means any Microsoft online service subscribed for under this agreement and provisioned via the Portal.
“Online Services Use Rights” means the use rights available at http://www.microsoft.com/licensing/onlineuserights. The Online Services Use Rights include terms governing your use of Products that are in addition to the terms in this agreement.
“Order” means an order for a Product through the Portal. An Order may include multiple Subscriptions to a Product.
“Portal” means the Online Services’ respective web sites that can be found at
http://www.microsoft.com/licensing/online-services/how-to-buy.aspx or at an alternate website we identify.
“Product” means any Online Service and Software.
“SLA” means the service level agreement commitments we make regarding delivery and/or performance of the Online Service, as published at http://www.microsoft.com/licensing/contractsor at an alternate site that we identify.
“Software” means software we provide for installation on your device as part of your Subscription or for use with the Online Service to enable certain functionality.
“Standard Offering” means that you commit in advance to purchase a specific quantity of a Product for use during a Term. You pay on a periodic basis during the Term in advance of use.
“Subscription” means an order for a quantity of Product for a defined Term (e.g., 30 days or 12 months) as specified on the Portal.
“Term” means the duration of a Subscription to use a specific Product as described on the Portal.
“we” and “us” means Microsoft Corporation and its affiliates, as appropriate.
“you” and “your” means the entity signing this agreement to use the Product.
Appendix to the Microsoft Online Subscription Agreement
Online Services Data Processing Agreement
This Online Services Data Processing Agreement (“DPA”) supplements the terms of the Microsoft Online Subscription Agreement.
In this DPA, “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, “Microsoft” means Microsoft Ireland Operations Limited, and “Customer” means the entity that entered into the Microsoft Online Subscription Agreement with Microsoft. Capitalized terms used in this DPA, but not defined, will have the definition in the Microsoft Online Subscription Agreement and any documents that expressly amend or supplement those terms (collectively, the “Agreement”). Terms not defined in this DPA or the Agreement will have the meaning given in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Data Protection Directive”).
For the Online Services, Customer is the data controller and Microsoft is a data processor acting on Customer’s behalf. As data processor, Microsoft will only act upon Customer’s instructions. The Agreement constitutes Customer’s complete and final instructions to Microsoft for its use of Customer Data under the Agreement.
Microsoft will process Customer Data during the term of its provision of the Online Services to Customer. Upon expiration or termination of Customer’s use of the Online Services, Customer may extract Customer Data, and Microsoft will delete Customer Data, each as set forth in the Agreement.
The scope and purpose of processing of the Customer Data that Customer provides to Microsoft through the use of the Online Services is described in the Agreement. Microsoft will only process such Customer Data for the purpose of providing the Online Services and performing its obligations in accordance with the Agreement.
Microsoft will take technical and organizational measures to help protect Customer Data from unauthorized access, use, or disclosure.
For the duration of Microsoft’s provision of the Online Services to Customer, Microsoft will, at its election and as necessary under applicable law implementing Article 12(b) of the Data Protection Directive, either: (1) provide Customer with the ability to correct, delete, or block Customer Data it provides to Microsoft through the use of the Online Services, or (2) make such corrections, deletions, or blockages on Customer’s behalf.
Microsoft personnel will not process Customer Data without authorization. Such personnel shall be obligated when taking up their duties to maintain confidentiality. The obligation of confidentiality shall continue after their engagement ends.
Customer appoints Microsoft to transfer, store and process Customer Data that Microsoft processes on Customer’s behalf in the United States or any other country in which Microsoft or its affiliates maintain facilities in order to provide the Online Services. Microsoft may also hire other companies to provide limited services on its behalf, such as providing customer support. Any such subcontractors are prohibited from using personal data for any purpose other than to deliver the services Microsoft has retained them to provide. Microsoft is responsible for its subcontractors’ compliance with the obligations of this DPA. Customer consents to Microsoft’s transfer of Customer Data to subcontractors in the United States or any other country in which they maintain facilities as described herein. Except as set forth above, as agreed by Microsoft and Customer, or as required by law, Microsoft will not transfer to any third party (not even for storage purposes) personal data that Customer provides to Microsoft through the use of the Online Services.
Microsoft Corporation and its controlled U.S. subsidiaries (1) abide by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union, the European Economic Area, and Switzerland (“Safe Harbor Principles”), and (2) will, during the term designated under the Agreement, remain certified under the EU and Swiss Safe Harbor programs so long as they are maintained by the United States government. Any subcontractors to whom Microsoft Corporation transfers personal data will first enter into written agreements requiring that the subcontractor provide at least the same level of privacy protection with respect to personal data it receives from Microsoft Corporation as is required by the relevant Safe Harbor Principles.
Microsoft’s data protection officer is:
Attn: Data Protection Officer
c/o Microsoft Ireland Operations Ltd.
Sandyford, Dublin 18, Ireland
This DPA is coterminous with the Microsoft Online Subscription Agreement to which this DPA is appended.