Professional Services are provided subject to the “Professional Services Terms” below. If, however, Professional Services are provided pursuant to a separate agreement, then the terms of that separate agreement will apply to those Professional Services. Data protection and security terms for Professional Services Data are in the DPA.
The Professional Services to which this Notice applies are not Online Services, and the rest of the Product Terms do not apply unless expressly made applicable by the Professional Services Terms below.
Professional Services Terms
Obligations of the Parties; Warranties
Microsoft warrants that all Professional Services will be performed with professional care and skill. If Microsoft fails to do so and Customer notifies Microsoft within 90 days of the date of performance, then Microsoft will either re-perform the Professional Services or return the price paid for them as Customer’s sole remedy for breach of the Professional Services warranty. Notwithstanding the foregoing, Services Deliverables that are provided without charge are provided “AS-IS,” WITHOUT ANY WARRANTY. Microsoft provides no warranties or conditions and disclaims any other express, implied or statutory warranties, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.
Customer will perform its applicable responsibilities and obligations to support Microsoft’s performance of the Professional Services, as specified in the description of each Professional Service. Customer may not use Professional Services or Services Deliverables in any way prohibited by the Acceptable Use Policy and must comply with all laws and regulations applicable to its use of Professional Services and Services Deliverables, including laws related to privacy, Personal Data, biometric data, data protection and confidentiality of communications. Customer is solely responsible for testing, deploying, maintaining and supporting Services Deliverables that are provided or recommended without charge by Microsoft.
Limitation of Liability
To the extent permitted by applicable law, each party’s total liability for all claims relating to Professional Services will be limited to the amounts Customer was required to pay for the Professional Services or the limitation of liability for the Online Service with which the Professional Services are offered, whichever is greater. For Professional Services and Services Deliverables provided free of charge and Services Deliverables that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000. In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, including loss of use, loss of profits, or interruption of business, however caused or on any theory of liability in relation to the Professional Services, or Services Deliverables. No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for all liability limited to Customer Data and Professional Services Data, which remain subject to the limitations and exclusions above); or (2) violation of the other party’s intellectual property rights.
“Fixes” are Product fixes, modifications or enhancements, or their derivatives, that Microsoft either releases generally (such as service packs) or that Microsoft provides to Customer to address a specific issue. Each Fix, is licensed under the same terms as the Product to which it applies. If a Fix is not provided for a specific Product, any use terms Microsoft provides with the Fix will apply.
“Pre-Existing Work” means any computer code or non-code based written materials developed or otherwise obtained independent of Customer’s volume licensing agreement. All rights in Pre-Existing Work shall remain the sole property of the party providing the Pre-Existing Work. Each party may use, reproduce and modify the other party’s Pre-Existing Work only as needed to perform obligations related to Professional Services. If Customer chooses to disclose its source code to Microsoft during a Professional Services engagement, then (1) prior to such disclosure, Customer will remove any third-party source code that Customer is prohibited from disclosing; and (2) Microsoft will treat Customer’s source code as confidential information.
Services Deliverables License
“Services Deliverables” means any computer code or materials (including without limitation proofs of concept, documentation and design recommendations, sample code, software libraries, algorithms and machine learning models) other than Products or Fixes that Microsoft leaves with Customer at the conclusion of Microsoft’s performance of Professional Services. Microsoft grants Customer a non-exclusive, non-transferable, perpetual license to reproduce, use, and modify the Services Deliverables, subject to and in accordance with the terms and conditions in Customer’s volume licensing agreement and any agreed statement of services. Some Services Deliverables and third-party content may be provided under a separate license, such as an open source license. In the event of a conflict between this Notice and any separate license, the separate license will prevail with respect to the Services Deliverables or third-party content that is the subject of such separate license. Each party reserves all rights (and no one receives any rights) not expressly granted by the foregoing licenses.
Customer must not (and is not licensed to) reverse engineer, decompile, disassemble or work around any technical limitations in any Services Deliverable except to the extent that applicable law doesn’t allow this restriction. Except as expressly permitted in this agreement and any agreed statement of services or separate license, Customer must not (and is not licensed to) distribute, sublicense, rent, lease, lend, sell, offer for sale or otherwise make available any Services Deliverables, in whole or in part, or subject Microsoft’s intellectual property in Services Deliverables to any other license terms.
“Feedback” means expertise and knowledge, including industry knowhow, as well as comments, input and suggestions regarding the Services Deliverables, Professional Services and the products, technologies, services, or any components of the foregoing, whether pre-release or commercially released, of either Microsoft or Customer. Neither Microsoft nor Customer are required to provide Feedback to the other in connection with Professional Services, but if a party in its sole discretion does provide Feedback, both parties agree that the receiving party should be free to use such Feedback without obligation. Accordingly, to the extent that the party providing Feedback owns or controls copyrights or trade secrets covering such Feedback, that party grants to the receiving party and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable and royalty-free license in such intellectual property to: (1) to make, use, modify, distribute, create derivative works and otherwise commercialize the Feedback as part of Microsoft’s or Customer’s products, technologies, services or any of their components, including without limitation pre-release and commercially released versions of such offerings; and (2) sublicense to third parties the foregoing rights, including the right to grant further sublicenses. Neither party will provide any Feedback subject to any terms that would impose any obligation on or require attribution by on the receiving party. Any party receiving Feedback further acknowledges that (1) it has sole and absolute discretion regarding whether it implements such feedback; (2) it shall base its offerings and marketing plans solely on its own independent research and analysis; and (3) it assumes all risks associated with any implementation of such Feedback.
Customer is solely responsible for any non-Microsoft software or technology that it installs or uses with the Online Services, Fixes, or Services Deliverables, including without limitation when Customer asks Microsoft to use or modify such third-party content.
Customer may sublicense the rights to use Services Deliverables to its Affiliates, but Customer’s Affiliates may not sublicense these rights. Customer is liable for ensuring its Affiliates’ compliance with the terms of this Notice and Customer’s volume licensing agreement.
If Customer is a government entity, then the following terms apply to any Professional Services provided at no charge to Customer. Microsoft waives any and all entitlement to compensation from Customer for the Professional Services. In compliance with applicable laws and regulations, Microsoft and Customer acknowledge that the Professional Services are for the sole benefit and use of Customer and not provided for the personal use or benefit of any individual government employee.
Notice about Azure Media Services H.265/HEVC Encoding
Customer must obtain its own patent license(s) from any third party H.265/HEVC patent pools or rights holders before using Azure Media Services to encode or decode H.265/HEVC media.
Notice about Adobe Flash Player
The software may include a version of Adobe Flash Player. Customer agrees that its use of the Adobe Flash Player is governed by the license terms for Adobe Systems Incorporated at http://go.microsoft.com/fwlink/?linkid=248532. Adobe and Flash are either registered trademarks or trademarks of Adobe Systems Incorporated in the United States and/or other countries.
Notice about H.264/AVC Video Standard, VC-1 Video Standard and MPEG-4 Visual Standard
This software may include H.264/AVC, VC-1, and MPEG-4 Visual technology. MPEG LA, L.L.C. requires this notice:
THIS PRODUCT IS LICENSED UNDER THE AVC, THE VC-1 AND THE MPEG-4 VISIAL PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE ABOVE (VIDEO STANDARDS) AND/OR (ii) DECODE AVC, VC-1 AND MPEG-4 VISUAL VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE SUCH VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. REFER TO www.mpegla.com.
For clarification purposes, this notice does not limit or inhibit the use of the software for normal business uses that are personal to that business which do not include (i) redistribution of the software to third parties, or (ii) creation of content compliant with the VIDEO STANDARDS technologies for distribution to third parties.
The software may include components of NVIDIA Corporation’s CUDA Toolkit, NVIDIA drivers, CUDA Deep Neural Network Library (cuDNN), NVIDIA Collective Communications Library (NCCL), and NVIDIA TensorRT (“NVIDIA Components”). Customer agrees that its use NVIDIA Components in the software is governed by the following NVIDIA license terms, as applicable: for NVIDIA CUDA Toolkit, https://docs.nvidia.com/cuda/eula/index.html; for NVIDIA drivers, https://www.nvidia.com/content/DriverDownload-March2009/licence.php?lang=us; for cuDNN it is http://docs.nvidia.com/deeplearning/sdk/cudnn-sla/index.html; for NCCL it is http://docs.nvidia.com/deeplearning/sdk/nccl-sla/index.html; and for TensorRT it is https://docs.nvidia.com/deeplearning/sdk/tensorrt-sla/index.html. As stated in their respective license terms, Customer acknowledges that certain NVIDIA Components as delivered are not tested or certified by NVIDIA for use in connection with the design, construction, maintenance, and/or operation of Critical Applications, that is systems where the use or failure of such system could result in a situation that threatens the safety of human life or results in catastrophic damages. Neither Microsoft nor NVIDIA shall be liable to Customer or any third party, in whole or in part, for any claims or damages arising from Critical Applications uses. Customer agrees to indemnify NVIDIA against all claims, damages, and costs arising from Critical Application uses as stated in the applicable NVIDIA terms. Customer is solely responsible for ensuring that any product or service developed with the NVIDIA Components as a whole includes sufficient features to comply with all applicable legal and regulatory standards and requirements.