MICROSOFT WINDOWS® AZURE MARKETPLACE PUBLISHER AND CATALOG LISTING AGREEMENT

(UPDATED AUGUST 2013)

This agreement (“Agreement”) contains terms of the relationship between you (the Publisher accepting this Agreement) and Microsoft Corporation or its Affiliate (“Microsoft”) relating to your use of the Marketplace, as such term is defined below. 

BY SCROLLING TO THE BOTTOM OF THIS AGREEMENT AND CLICKING THE “I ACCEPT” BUTTON, PUBLISHER AGREES TO BE BOUND BY THIS AGREEMENT.  PUBLISHER ALSO REPRESENTS THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT.  PUBLISHER MUST ACCEPT THIS AGREEMENT BEFORE IT CAN MAKE PUBLISHER OFFERINGS AVAILABLE IN THE MARKETPLACE.

Terms and Conditions

1)       Definitions .  In this Agreement the following definitions apply:

a.         “Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party.  “Own” means more than 50% ownership or the right to direct the management of the entity.

b.       “Catalog-Only” means the listing of a Publisher Offering on Marketplace but does not include the right to purchase the Publisher Offering through Marketplace.

c.        “Country” means, for each Publisher Offering, the countries in which Publisher permits such Publisher Offering to be purchased.

d.       “Effective Date” means the date this Agreement is accepted by Publisher.

e.        “Listing Information” means, collectively, the descriptive information accompanying each Publisher Offering that (among other things) identifies the nature, volume, business terms, a link to Publisher’s Privacy Policy and other features of the applicable Publisher Offering, as such information is supplied by Publisher for purposes of enabling Microsoft to categorize, integrate, list, describe, display and otherwise support Publisher Offering in Marketplace; as well as any additional information regarding Publisher Offering made available hereunder at any time during the Term.

f.          “Marketplace” means the marketplaces made available by Microsoft, including Microsoft Windows Azure Marketplace ( http://datamarket.azure.com class=MsoHyperlink>), or any successor, replacement, or supplemental service or product offerings that are made subject to this Agreement by Microsoft.  Marketplace enables the availability of Publisher Offerings under terms from Publisher and, for some Marketplaces, has a Catalog-Only listing for Publisher Offerings available outside the Marketplace.  For clarity, any changes made to the Marketplace name, brand, URL, identifier or other service nomenclature, including any subsequent codenames and/or brands shall not alter this definition or otherwise affect the terms of this Agreement.  Marketplace excludes any third party services, web sites, products or other offerings that may be linked to, redirected from, or otherwise made available via Marketplace.

g.         “Marketplace Code of Conduct” means the terms and conditions governing the listing of Publisher Offerings in Marketplace, the current version of which is attached as Exhibit B.

h.     “Microsoft Terms” mean, collectively, the Offering Requirements, Marketplace Code of Conduct, and Payment Terms, , as each is posted online or otherwise made publicly available, including any and all subsequent modifications, updates, successor or replacement versions of the same.

i.      “Offering Requirements” means the ongoing minimum technical, operational, quality, support and service requirements for Offerings made available in Marketplace, the current version of which is attached as Exhibit A.

j.      “Publisher” means the entity accepting this Agreement.

k.     “Publisher Offering” means, collectively, any and all data, datasets, web services, text, tables, numeric information, images, graphics, analytics, reports, photographs, designs, artwork, software, applications, services, registration and contact information, descriptions, visualizations, and other audio and/or visual media provided by Publisher to Microsoft for publication, and display in connection with the Marketplace, either in a Catalog-Only listing or available for purchase through the Marketplace.   Publisher Offering also includes the items set forth in Section 2(a).

l.      “Publisher Marks” means Publisher’s logos, marks, trademarks, service marks, third party brands or other attributions of ownership or control as supplied to Microsoft in connection with this Agreement. 

m.    “Publisher Terms” means Publisher’s written end user agreement governing the available rights and related obligations for each Publisher Offering made available in Marketplace, which are subject to the requirements of Section 2 (f). 

n.     “User” means any individual or entity that accesses a Publisher Offering made available in Marketplace. 

 

2)       Publisher Participation in the Marketplace

a.         Delivery.  Publisher must submit the relevant materials to Microsoft for each Publisher Offering that Publisher wishes to make available in Marketplace, in a form and format reasonably requested by Microsoft.  Each Publisher Offering shall be accompanied by accurate and applicable: (i) Publisher Terms; (ii) Publisher Marks; (iii) Listing Information; and (iv) contact and registration information; provided that Catalog-Only Publisher Offerings shall only be required to deliver items (ii), (iii) and (iv). 

b.        Catalog-Only.  Publisher may choose to list its Publisher Offering only in the catalog available in the Marketplace, but not make it available for offer, purchase, or license through the Marketplace.  In such event, Microsoft will not facilitate the licensing of such Publisher Offering, nor will Microsoft collect or pay any revenue amounts for such Publisher Offerings.

c.         Offering.  Publisher shall ensure that all Publisher Offerings made available through the Marketplace are: (i) free of technical defects that block, degrade, or otherwise interfere with the User experience; (ii) free of material inaccuracies such as known errors in fact, statistics, numbers or figures, grammatical errors and/or typographical mistakes; (iii) of a nature and quality that is suitable for public display; (iv) of a quality no less than equivalent to Publisher Offerings published, sold or licensed by Publisher through other channels; (v) in their final form – e.g. no “alpha,” “beta” or “proof of concept” releases; (vi) available for at least one year after initial publication; and (vii) in compliance with this Agreement, including Microsoft Terms.  Publisher Offerings that are applications must use at least one Windows Azure service.  Publisher Offerings may consist of support for other Publisher Offerings.

d.        Publisher Obligations.  Publisher acknowledges that it, and not Microsoft, is the distributor and licensor of the Publisher Offering.  Listing and support of a Publisher Offering in Marketplace is subject to Publisher’s continued compliance with this Agreement.  As between the parties, Publisher shall be solely responsible for: (i) the selection, quality, quantity, updates and proper refresh rates of all listings for and any Publisher Offerings in Marketplace; (ii) the acquisition of and compliance with appropriate third party licenses, rights, clearances or any other permissions related to any Publisher Offering and the activities contemplated under this Agreement; and (iii) all customer support, returns, refunds, questions and complaints relating to any Publisher Offering, including Publisher Terms, pursuant to Section 2 (f); (iv) the creation and continued accuracy of Listing Information.   Microsoft is not responsible for any Publisher Offering.

e.        Additional Technical Support.  Microsoft reserves the right to charge Publisher for any supplemental or additional services that may be requested by Publisher and/or identified by Microsoft as reasonably necessary for Microsoft to make available to provide the listing, display or availability of any Publisher Offering in Marketplace, as such services are mutually agreed upon by the parties in writing. 

f.          Publisher Terms.  Publisher Terms shall be set by Publisher, subject to the terms of this Agreement, including the Term and Termination provisions of Section 9.  The Publisher Terms must: (i) govern the rights and obligations of User and Publisher only, and in no event shall Microsoft be listed as a party, third party beneficiary of, or third party obligor, under the Publisher Terms; (ii) not grant, or purport to grant, any rights to a Publisher Offering that exceed the technical limitations of, or services supported in, the Marketplace; (iii) not shift any of Publisher’s rights or obligations thereunder to Microsoft, misrepresent the nature of the relationship between Publisher and Microsoft, include any express or implied endorsement of Publisher or any Publisher Offering by Microsoft, or make any other statements, representations, warranties or other commitments on Microsoft’s behalf; (iv) not limit the use of Publisher Offering to personal or other non-commercial use only; and (v) contain or link to an appropriate privacy statement reflecting Publisher’s collection and use of personal information that (A) complies with applicable laws and regulations, (B) informs users of the information collected by the Publisher Offering and how that information is used, stored, and disclosed, and (C) describes the controls that users have over the use and sharing of their information.

g.        Sharing of User’s Information.  Publisher may request in writing that Microsoft share User’s Administrator Data.  Microsoft may provide Publisher with such Users’ Administrator Data upon such request, subject to the following conditions:

i.          Publisher shall ensure that its use of any such information is reflected in, and complies with, the privacy statement described in Section 2(f);

ii.         Publisher shall ensure that its use of any such information complies with applicable laws and regulations; and

iii.       Without limiting the foregoing, Publisher shall not use such information for purposes of promotional communications unless User has provided affirmative, opt-in consent to receive such communications, and even in such case, only for communications directly from Publisher and not Publisher’s affiliates.

“Administrator Data” shall have the same meaning as in the Marketplace’s Privacy Statement as amended from time to time, the current version of which is located at http://www.windowsazure.com/en-us/support/legal/privacy-statement/ .

h.        Persistent Availability of Publisher Offerings.  Publisher shall ensure that the availability of each Publisher Offering meets or exceeds the availability obligations set forth in the Offering Requirements.  After the Publisher Offering is made publicly available in Marketplace, Publisher shall not modify, replace, alter, supplement, erase or otherwise change Publisher Offering (in whole or in part), except to refresh or update Publisher Offering as may be required under Publisher Terms or Publisher’s obligations pursuant to Sections 2(d) and 2(e). 

i.         Control of Marketplace Retail Environment.  Notwithstanding any provision of this Agreement, Microsoft shall have the right to determine, in its sole discretion, changes, improvements or corrections to the Marketplace, including: (i) the design, appearance, features and functionality of Marketplace and any element, page or component thereof; (ii) the precise placement, size and location of all Publisher Offerings displayed therein; (iii) the categories of Publisher Offerings available in Marketplace; (iv) the timeframe for publication of any Publisher Offering into Marketplace; and (v) the listing, suspension, takedown, removal or de-listing of any Publisher Offerings displayed or otherwise made available in Marketplace.  Microsoft may, in its sole discretion, discontinue the Marketplace, in whole or in part.

j.          Microsoft further retains the right to reject or remove any Publisher Offering for any reason.  Notwithstanding the foregoing rights, Publisher acknowledges and agrees, however, that Microsoft may, but is not required to, screen or edit Publisher Offerings, endorse any specific Publisher Offering or make any assessment as to User demand for Publisher Offering in Marketplace.

k.         International.  Microsoft makes the Marketplace available to Users in a Country.  Microsoft will not provide support for products or services to Users outside a Country.  Publisher is solely responsible for ensuring that offering of Publisher Offering(s) through the Marketplace complies with any applicable export control and other laws and regulations in a Country.  Publisher may only offer products which are widely distributable to Users in a Country without further government approvals or licenses for product offered.  Publisher must immediately notify Microsoft if the Publisher Offering is or becomes subject to any restrictions due to government laws or regulations.

Microsoft software, online services, technology and professional services are subject to u.s. Export jurisdiction. Publisher must comply with all applicable international and national laws, including the u.s. Export administration regulations, the international traffic in arms regulations, and end-user, end use and destination restrictions by u.s. and other governments related to microsoft products, services, and technologies. For additional information related to microsoft compliance with export rules, see www.microsoft.com/exporting .  Publisher will notify microsoft at cmec@microsoft.com as to any regulatory or legal controls on the use, access or transfer of publisher offering prior to such use, access or transfer to/by microsoft. Publisher will provide sufficient information to permit microsoft to comply with applicable controls on publisher offering.

l.          Affiliates.  Microsoft may perform certain of its services with respect to the Marketplace and fulfill certain of its obligations under this Agreement through one or more Microsoft Affiliates. 

 

3)       Appointment; Licenses

a.         Appointment of Microsoft.  Publisher hereby appoints Microsoft to act as its agent or commissionaire, as applicable, in offering and providing the Publisher Offering to Users through the Marketplace. With respect to the web-based UI experience for a Marketplace, Publisher Offerings shall be conditioned upon a “click to agree” acceptance of Publisher Terms by Users.  Microsoft may also, with the Publisher’s consent, enable Users to purchase and access Publisher Offerings through Marketplace application programming interfaces (APIs), and will specify in the documentation for such APIs that by using the APIs to purchase or otherwise acquire the Publisher Offering, User is consenting to the applicable Publisher Terms.

b.        Limited Licenses between Publisher and Microsoft.  Publisher, not Microsoft, will license the right to use the Publisher Offerings to Users.  Microsoft does not control any of the Publisher Offerings or any intellectual property rights therein and all licenses and rights must be granted by Publisher. Publisher will provide the Publisher Terms that will be presented to Users with Publisher Offerings.  Publisher does not transfer ownership of the Publisher Offerings to Microsoft by submitting it, but Publisher does grant to Microsoft, solely in its capacity as Publisher’s agent, the limited right to host or exercise other rights, as Publisher’s agent, with respect to  Publisher Offerings for the limited purpose of providing Publisher with Marketplace services.  

c.         Responsibilities for Agreements.  Publisher acknowledges that Microsoft grants no rights or license to Publisher Offerings through the operation of the Marketplace, or through providing or offering Publisher Offerings through the Marketplace. Any agreement or license granting rights to Publisher Offerings from third party right holders is between Publisher and such third party right holders.    Publisher represents, warrants and acknowledges that in no event shall Microsoft be deemed a party, third party beneficiary of, or third party obligor to, any agreements or licenses provided by third parties in connection with Publisher Offerings.  In all cases, Microsoft does not and will not accept any obligations set forth in any separate license or other agreement that may apply to the Submissions, or any portion thereof. You hereby agree to secure the necessary rights to ensure that the Submissions may be hosted by Microsoft on the Marketplace without violating the rights of any third party or subjecting Microsoft or its technology or intellectual property to any other obligations to you or any third party.

d.        Right to Use Publisher Marks.  Publisher grants Microsoft, its agents, licensees, and affiliates, the right to use, reproduce, display, and publicly perform Publisher’s entity name, Publisher Offerings, and Publisher Marks, without modification, in connection with the marketing, offering, and providing of the Publisher Offerings in the Marketplace and in marketing campaigns, presentations, and press releases for the Publisher Offerings and/or the Marketplace and otherwise exercise such rights in Publisher Offerings as reasonably necessary for Microsoft to perform the obligations contemplated under this Agreement, including the right to sublicense such rights to third party service providers and suppliers. 

 

4)        Payment Terms and Fees .  

a.         Publisher Offering Pricing and Billing.  Publisher Offerings listed in Marketplace shall display a unit price to Users (“User Fee”) as set by Publisher and identified in applicable Listing Information.  Conversion to local currency pricing for Users in Territories will be based on the conversion rates used by Microsoft at that time.  Microsoft or its designated service provider shall support payment processing for User transactions in Marketplace under then-current payment terms, the current version of which is located at www.billing.microsoft.com (the “Payment Terms”). 

b.        Amounts Due Publisher.  Amounts payable to Publisher shall be calculated on a quarterly basis as follows:  (i) Aggregated User Fees paid and actually collected from Users over the previous calendar quarter, net of any and all taxes and exclusive of any cancelled transactions for Publisher Offering rejected by Users within 5 days of receipt by Users; less (ii) a “Microsoft Service Fee,” equal to 20% of the User Fee, for promotion and availability of Publisher Offering.  The total sum payable hereunder is referred to as “Publisher Net Revenue.”

c.         Promotions.  For the avoidance of doubt, no amounts shall be due and payable for any Publisher Offering: (i) provided by Publisher at no charge to Users, including trial or preview versions of a Publisher Offering; or (ii) provided for testing, evaluation, marketing, demonstration or promotional purposes (e.g., press coverage, industry review, launch events). 

d.        Payment Terms.  Publisher Net Revenues shall be due and payable to Publisher within 45 days after each calendar quarter (or partial quarter) during the Term.  In the event Publisher Net Revenues are less than $250.00 in any given quarter, however, Microsoft reserves the right to delay payment until the next calendar quarter, adding such sum to subsequent payments to Publisher.  All Publisher Net Revenues shall be paid using Microsoft standard payment methods, which may include checks payable to Publisher and sent via U.S. mail, care of Publisher Point of Contact, and/or ACH electronic payment to a financial institution designated by Publisher.  Payments made to Publisher hereunder shall be accompanied by a quarterly transaction report (in electronic or other written form) which reflects the calculation of Publisher Net Revenues and the number of Publisher Offerings purchased by Users during the relevant quarter. 

e.        Remittance Currency.  Publisher Net Revenue will generally be remitted to Publisher in the Publisher’s native currency.  However, Microsoft may elect to remit (or cause to be remitted) Publisher Net Revenue in USD or in another currency of Microsoft’s choosing based on the conversion rates used by Microsoft at that time.

f.          Refunds; Credits.  Publisher will inform Microsoft in the case that any User is owed a refund for any Publisher Offering.  In such case Microsoft shall be solely responsible for processing any refunds through its payment system.  Publisher will not receive payment for any Publisher Offering that is sold and later refunded, and Microsoft may offset future payments to Publisher if a refund is issued for a transaction for which Publisher has already received payment.   

g.         Taxes.

i.          Responsibility for Taxes Pertaining to User Purchases.  If Publisher chooses to have Microsoft make Publisher Offerings available for customers in the United States, any current member country of the European Union (including Croatia), Canada, Norway, Switzerland, Taiwan or Liechtenstein (“Remittance Countries”), Microsoft (or its billing service provider) will collect and remit sales, use, goods and services, value added or similar taxes, if any, applicable to your app as made available in such country(s) through the Marketplace. In any country other than the Remittance Countries (such other country referred to in this section as an “ISV Remittance Country”), Microsoft will not remit any sales, use, goods and services, value added or other similar tax. You are responsible for determining whether you have an obligation to register, collect, and remit taxes in any ISV Remittance Country, and you must designate the sales price of your app to include any applicable taxes that you are obligated to collect and pay in those ISV Remittance Countries.

ii.         Responsibility for All Other Taxes. In the event that any price payable by any User for any of the Publisher Offerings is subject to (A) any withholding or similar tax; or (B) any sales, use, goods and services, value added, or other tax or levy not collected by Microsoft; or (C) any other tax or other government levy of whatever nature, the full amount of that tax or levy shall be solely for Publisher’s account, and shall not reduce the Microsoft Service Fee to which Microsoft is entitled.  Publisher is solely responsible for determining its federal, state, local, foreign and any other tax obligations in any taxing jurisdiction in connection with the transactions contemplated by this Agreement and for paying and reporting those taxes, including taxes unique to Publisher’s residence and any taxes related to Publisher Net Revenue that Publisher may receive under this Agreement.  If taxes are required to be withheld on any amounts payable by Microsoft (or, if applicable, its Affiliate, vendor or agent) to Publisher, Microsoft (or such Affiliate, vendor or agent) will deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority and will secure and deliver to Publisher an official receipt or other evidence of payment for any taxes withheld.  Microsoft shall use reasonable efforts to minimize such taxes to the extent permissible under applicable law, and both parties shall reasonably cooperate with each other to obtain the lowest tax rates or elimination of such taxes. If Microsoft is required to collect any sales, use, goods or services, value-added or similar taxes in connection with Publisher’s payment of the Microsoft Service Fee, Microsoft may deduct and retain the amount of such taxes from amounts otherwise due to Publisher and remit them to the applicable taxing authority.

iii.       Tax Reporting.  If (i) Publisher chooses to have Microsoft make Publisher Offerings available for Users in an ISV Remittance Country, and (ii) Users purchase such Publisher Offerings in an ISV Remittance Country, Publisher shall have sole responsibility to determine its tax obligation in such ISV Remittance Country, if any, and Publisher acknowledges that Microsoft does not provide Publisher with the transaction details required to provide its Users with an invoice.

 

5)       Support of Publisher Offering in Marketplace.

a.         User Support.  Publisher shall provide commercially reasonable customer support to Users.  At a minimum, a customer service contact shall be available to Users throughout the Term and during regularly scheduled business hours.  Microsoft’s sole and only obligation with respect to customer service for a Publisher Offering is to make Publisher’s customer service contact information reasonably available to Users. 

b.        Publisher Information.  Publisher shall ensure that its contact information and Listing Information provided to Microsoft is accurate and remains current throughout the Term.  Publisher must make a support contact available to Microsoft via e-mail and telephone 24 hours a day, 7 days a week for notification and prompt resolution of any Marketplace service related issues. 

c.         Limited Availability of “Free” Publisher Offering.  Publisher acknowledges and agrees that Marketplace has limited capacity to support Publisher Offerings made available to Users at no charge.  Microsoft may, in its sole discretion, impose capacity limitations or availability restrictions on free Publisher Offerings.  Microsoft also reserves the right to restrict, take down, limit or otherwise curtail access to, and use of, free Publisher Offerings.  As a result, free Publisher Offerings may not be as consistently or reliably available to Users as Publisher Offerings offered for a fee.  Further, Microsoft may charge Users or Publishers separate or additional fees to support unlimited or unrestricted access to free offerings.  Microsoft shall have no obligation to include any such separate or additional fees in the Publisher Net Revenue payable to Publisher hereunder. 

 

6)        Warranties .  Each party represents and warrants to the other that: (a) it has the full corporate authority to execute this Agreement; (b) performance of this Agreement, and the other party’s exercise of the rights granted herein will not conflict with, or result in a breach or violation of, any agreement, instrument, or legally protected right.  Publisher further represents, warrants and covenants that: (i) Publisher will perform and is solely responsible for all obligations to Users set forth in the Publisher Terms (including, without limitation, the Publisher’s privacy policy); (ii) Publisher and the Publisher Offering(s) comply with and will continue to comply with the Offering Requirements and Marketplace Code of Conduct; (iii) any information provided for Provided Offering listings is complete, accurate, and not misleading; (iv) the Publisher Offering will not infringe on any rights, including third party rights; and (v) no Publisher Offering will include any (A) malicious code that may damage or degrade Marketplace, its online delivery service or any other computer system or software; or (B) disabling mechanism, protection feature, or device designed to prevent access to or proper use of any Publisher Offering or component of Marketplace. 

 

7)       Confidential Information.   Each party agrees that at all times during the term of this Agreement, and for five (5) years thereafter, the recipient of Confidential Information under this Agreement will hold in confidence, and will not use or disclose any Confidential Information to any third party (other than in response to lawful requests from law enforcement authorities or permitted contractors to the extent they are performing the receiving party’s obligations under this Agreement subject to confidentiality obligations that are at least as protective as those contained in this Section 7). The term “Confidential Information” means all non-public information that a party designates, either in writing or verbally, as being confidential, or which, under the circumstances of disclosure, ought to be treated as confidential. Confidential Information includes information relating to (a) business policies or practices of a party, (b) customers or suppliers of a party, or (c) information received from others that the disclosing party is obligated to treat as confidential, but does not include information that was known to the receiving party prior to disclosure by the disclosing party, or information that becomes publicly available through no fault of the receiving party. If you have any questions as to what comprises Microsoft Confidential Information, you agree to consult with Microsoft.

 

8)       Disclaimer, Limitation of Liability, and Defense of Claims.

a.         DISCLAIMER OF WARRANTY.  MICROSOFT PROVIDES THE MARKETPLACE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." PUBLISHER BEARS THE RISK OF USING THE MARKETPLACE TO OFFER AND PROVIDE PUBLISHER OFFERING(S) TO USERS.  TO THE EXTENT PERMITTED BY LOCAL LAW, MICROSOFT, ON BEHALF OF ITSELF AND ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS (COLLECTIVELY, “MICROSOFT”), EXCLUDES ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT, RELATING TO THE MARKETPLACE.  WITHOUT LIMITING ANY OF THE FOREGOING, MICROSOFT EXPRESSLY DISCLAIMS ANY WARRANTIES THAT ACCESS TO OR USE OF THE MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE.

b.        LIMITATION OF LIABILITY.  UNDER THIS AGREEMENT, PUBLISHER CAN RECOVER FROM MICROSOFT AND ITS AFFILIATES ONLY DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO THE GREATER OF (i) FIVE THOUSAND U.S. DOLLARS (US$5000) OR (ii) THE TOTAL AMOUNT OF NET PUBLISHER REVENUES ACTUALLY PAID OR PAYABLE BY MICROSOFT TO PUBLISHER DURING THE TERM.  PUBLISHER MAY NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES FROM MICROSOFT OR ITS AFFILIATES.  THESE LIMITS AND EXCLUSIONS APPLY EVEN IF MICROSOFT KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.  THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CERTAIN PUBLISHERS WHERE THE STATE OR COUNTRY MAY NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES.

c.         Duty to Defend; Indemnification.  Publisher will defend Microsoft and its Affiliates from and against any and all claims, assertions or complaints made or brought by an unaffiliated third party: (i) alleging that a Publisher Offering infringes its copyright, trademark, or patent rights, or misappropriates its trade secret or undisclosed information; (ii) arising out of the Publisher Offering (including, without limitation, claims related to privacy or product liability); (iii) arising from any breach of any warranty in this Agreement by Publisher; or (iv) arising out of Publisher’s failure to comply with Section 4(g) or Exhibit D. Publisher will also pay the amount of any resulting adverse final judgment (or settlement to which Publisher consents).  Publisher’s obligations under this subsection are subject to all of the following conditions: Microsoft will (A) notify Publisher promptly in writing of the claim; provided however, Microsoft’s failure to notify shall not relieve Publisher of any liability that it may have, except to the extent that such failure materially prejudices Publisher’s legal rights; and (B) provide Publisher with reasonable assistance in defending the claim (and Publisher will reimburse Microsoft for any reasonable out-of-pocket expenses incurred in providing that assistance).  Any settlement or compromise of a claim covered by this section cannot obligate Publisher in any manner without such Publisher’s prior written consent.

d.       Duty to Correct.  Without limiting any rights or remedies available to Microsoft, Publisher shall additionally notify Microsoft if a Publisher Offering (or any component thereof) and/or its display in the Marketplace as contemplated by this Agreement is enjoined or is threatened to be enjoined as infringing the rights of third parties and immediately, at Publisher’s expense: (i) procure for Microsoft the right to continue to display and sell such Publisher Offering in the Marketplace; or (ii) remove the applicable Publisher Offering and either (A) provide Users with a reasonably acceptable alternative at no additional charge; and/or (B) refund to each User all amounts prepaid by such User and pay to Microsoft any administrative costs or fees associated with such refund.  

 

9)       Term and Termination

a.        The term of this Agreement is one year from the Effective Date (the “Initial Term”).  Thereafter, this Agreement shall automatically renew for additional one year periods unless terminated under Section 9(a)(i) below (the Initial Term plus any renewal terms, collectively, the “Term”).  Neither party will be liable to the other for any damages relating to the expiration or termination of this Agreement under this Section 9.  This Agreement will remain in effect until terminated. 

i.          Termination for Convenience after Initial Term.  Following the Initial Term, either party may terminate this Agreement at any time and for any reason (or no reason) by giving at least 60 days written notice. 

ii.         Termination for Agreement Updates.  Either party may terminate this Agreement if Publisher does not accept any amended terms to this Agreement under Section 10(i) below.

iii.       Termination for Breach.  Either party may terminate this Agreement immediately in the event of a material breach of this Agreement by the other party which is not cured within 10 days after receipt of written notice of the breach. 

b.       Takedown; Suspension by Microsoft.  In addition to Microsoft’s rights in Sections 2(g) and 9(a) above, Microsoft may:

i.          Immediately remove and takedown any Publisher Offering (or any component thereof) from Marketplace, or with respect to any Country, without prior notice to Publisher in the event: (A) any Publisher Offering is subject to takedown under then-current Microsoft copyright infringement policies located (as of the Effective Date) at http://www.microsoft.com/info/cpyrtInfrg.htm; or (B) any Publisher Offering is in material violation of this Agreement (including Microsoft Terms); and/or

ii.         Suspend its performance of this Agreement, effective immediately upon written notice to Publisher for any material breach of this Agreement, including noncompliance with the Offering Requirements or Marketplace Code of Conduct.  If Publisher cures such breach to Microsoft’s reasonable satisfaction within 10 days of suspension, Microsoft shall notify Publisher, the parties shall resume their respective obligations hereunder, and this Agreement shall continue in full force and effect.  If the Publisher does not cure such breach within such 10 day timeframe, Microsoft may terminate pursuant to Section 9(a)(iii) above.

c.        Takedown; Suspension by Publisher.  Publisher may:

i.       Request that Microsoft take down any Publisher Offering that has been available for at least 12 months, upon no fewer than 30 days prior written notice; and/or

ii.     Require that Microsoft cease making available the Publisher Offerings if Microsoft is in material breach of this Agreement.  If Microsoft cures such breach to Publisher’s reasonable satisfaction within 10 days of suspension, Publisher shall notify Microsoft, the parties shall resume their respective obligations hereunder and this Agreement shall continue in full force and effect.  If Microsoft does not cure such breach within such 10 day timeframe, Publisher may terminate pursuant to Section 9(a)(iii) above.

d.       Continued Support in Marketplace.  Following the termination of this Agreement for any reason, Microsoft shall be entitled (but not obligated) to continue making the Publisher Offering available to existing Users until the later of (i) 90 days after the effective date of termination of this Agreement or (ii) the date on which the last existing User subscription expires.  Nothing in this Section 9(d) shall prevent Microsoft from exercising its rights under this Agreement.

e.       Effect of Takedown; Election of Remedies.  Microsoft shall have no liability to Publisher or any User for any Publisher Offering removed, blocked, suspended or taken down from Marketplace pursuant to this Agreement.   In no event shall any Microsoft removal, takedown and/or suspension be deemed an election of remedies; Microsoft’s rights hereunder are in addition to, not in lieu of, all other available rights and remedies for any breach of this Agreement.

f.         Notice of Termination.  In the event of any termination, takedown, and/or suspension of this Agreement, Microsoft reserves the right to provide notice of termination directly to Users of a Publisher Offering.  For the avoidance of doubt, the parties acknowledge and agree that the exercise of such rights does not create (expressly or by implication) any Microsoft rights or obligations under Publisher Terms, including any authority of Microsoft to enforce Publisher Terms against Users.   

g.        Termination of Users.  Publisher acknowledges and agrees that Microsoft may, in its sole discretion, terminate individual User access to the Marketplace or block User(s) from accessing any Publisher Offering made available therein.  Termination of any User rights to access the Marketplace shall not cause a termination of this Agreement or be deemed a breach of this Agreement.

h.        Effect of Termination.  Upon termination or expiration of this Agreement for any reason, the definitions, 3(c), 3(d), and 4 (for the wind down period specified in Section 9(e)) and 7 through 10 shall survive and continue in effect in accordance with their terms. 

 

10)   Miscellaneous.

a.         All notices shall be in writing and provided either by electronic or physical mail to Publisher at the address provided at the time of registration; and to Microsoft at:

Microsoft Corporation

One Microsoft Way

Redmond, WA 98052

With a copy to Law and Corporate Affairs, Attn:  Windows Azure Marketplace Attorney

Each party may change the persons to whom notices will be sent by giving prior notice to the other.

b.        Jurisdiction and Governing Law.  Except as set forth in Exhibit C, the laws of the State of Washington govern this Agreement.  If federal jurisdiction exists, the parties consent to exclusive jurisdiction and venue in the federal courts in King County, Washington.  If not, the parties consent to exclusive jurisdiction and venue in the Superior Court of King County, Washington.

c.         Attorneys’ Fees.  If either Microsoft or Publisher employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses, including the costs and fees incurred on appeal or in a bankruptcy or similar action.

d.        Waiver.  A party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.

e.        Severability.  If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.

f.          Assignment.  Publisher may not assign this Agreement, or any rights or obligations hereunder, whether by operation of contract, law or otherwise, except with the prior written consent of Microsoft which consent may not be unreasonably withheld.  Any attempted assignment by Publisher in violation of this Section shall be void.  Microsoft may assign this Agreement to an Affiliate and in such event will provide Publisher of notice either by e-mail, in writing, via the Marketplace, or other electronic means. 

g.         Force Majeure.  Neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control.  The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use reasonable, good-faith efforts to resume performance.  Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event ends.

h.        Relationship of Parties.  Neither this Agreement, nor any terms and conditions contained herein, create a partnership, joint venture, employment relationship or grants a franchise.

i.          Entire Agreement; Amendments.  This Agreement (including its Exhibits) and the Microsoft Terms referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications.  This Agreement may be amended either (i) in a signed writing by the parties, or (ii) by Microsoft by providing Publisher with a notice of changes and/or a new Agreement, which Publisher is deemed to accept by continuing to provide Publisher Offerings in the Marketplace on the fifteenth (15th) day after notice to Publisher of such changes and/or a new Agreement. In the event that Publisher does not agree to any changes or a new Agreement and Publisher notifies Microsoft prior to the fifteenth (15th) day after notice of such changes, (A) Microsoft may remove Publisher Offerings from the Marketplace, and/or terminate this Agreement under Section 9(a)(ii), and (B) Publisher may remove its Publisher Offerings and terminate the Agreement under Section 9(a)(ii).

 

 

EXHIBIT A
Offering Requirements

 

Publisher shall fulfill all Publisher Offerings reliably, without significant delay or interruption, and in a manner that delivers a high-quality end user experience.  Without limitation, all Publisher Offerings shall conform to the following minimum service and quality levels.

 

1)       Publisher’s means of delivering Publisher Offerings (“online delivery service”) shall operate 24 hours a day, 7 days a week with guaranteed external connectivity at least 99.9% of the time with no single unscheduled outage exceeding 4 hours.

 

2)       The online delivery service response time shall be no greater than 2 seconds for web services.  A Publisher Offering that includes structured data, such as relational data, must have enough available copies to connect to a data source 99.9% of the time.

 

3)       The Publisher Offerings shall be persistently available to Users for the duration of any license or subscription purchased by Users, as such duration is set by Publisher Terms but shall be no less than one year.

 

4)       Publisher must give Microsoft no less than one week advance notice of any regularly scheduled downtime which will make Publisher Offerings unavailable to Users for a period exceeding 60 seconds.

 

5)       The Publisher Offering may be routed and delivered through secure, reliable third party data centers located in the United States.

 

6)       Publisher shall employ reasonable and current data security technology to protect Publisher Offerings, any User data and other information related to the transactions contemplated under this Agreement.

 

7)       The Publisher Offerings must not automatically install any software on a User’s computer, device or other hardware without prior affirmative consent from the User.  Additionally, the Publisher Offerings– even with User consent– must not install and/or display an icon for any software (such as a systray application or a background process) that modifies or subverts the User’s selection of services or client-side applications.

 


 

EXHIBIT B

Marketplace Code of Conduct

Publisher shall not make available in Marketplace any Publisher Offering or otherwise use the Marketplace service in any way that:

 

1)       Is illegal or violates any applicable local or national laws; including but not limited to child pornography, bestiality, incest, illegal drugs, software piracy, and harassment.

 

2)       Depicts nudity of any sort, including full or partial human nudity or nudity in non-human forms such as cartoons, fantasy art, or manga.

 

3)       Incites, advocates, or expresses pornography, obscenity, vulgarity, profanity, hatred, bigotry, racism, or gratuitous violence.

 

4)       Harms or exploits minors in any way.

 

5)       Misrepresents or mischaracterizes the source, nature, quality or quantity of Publisher Offerings or any other component thereof.

 

6)       Threatens, stalks, defames, defrauds, degrades, victimizes, or intimidates an individual or group of individuals for any reason; including on the basis of age, gender, disability, ethnicity, sexual orientation, race, or religion; or incites or encourages others to do so.

 

7)       Promotes or otherwise facilitates the purchase and sale of ammunition or firearms.

 

8)       Provides, references, redirects or creates links to external sites that violate any part of this Marketplace Code of Conduct.

 

9)       Invades anyone’s privacy by attempting to harvest, collect, store, or publish private or personally identifiable information, such as passwords, account information, credit card numbers, addresses, or other contact information.

 

10)   Harms or disrupts, or intends to harm or disrupt another’s computer, online service or systems.

 

11)   Enables or facilitates unauthorized access to Offerings in Marketplace or Users (including individual Windows Live ID accounts and e-mail addresses).    

 

12)   Includes tools or technologies designed to bypass security on websites or servers.

 

13)   Attempts to impersonate a Microsoft employee, agent, manager, host, another User, or any other person through any means.

 

14)   Contains advertising for money making schemes, discount cards, credit counseling, online surveys or online contests.

 

15)   Contains or could be considered commercial advertisement, including 'junk mail', 'spam', 'chain letters', 'pyramid schemes', 'affiliate marketing', or other unsolicited communications.

 

16)   Attempts to manipulate the features and functionality of Marketplace (or any component within Marketplace, including any placement of Publisher Offering in Marketplace), as well as search, ranking and reputation systems which are or may be offered in the service.

 

17)   Redirects Users to another retail service outside of Marketplace.

 

18)   Offers to make separate sales or payment processing for online or support subscriptions outside of the Marketplace.  

 

19)   Includes automated applications or computer programs that manipulate, remove, alter or replace offerings listed or otherwise made available in Marketplace.  

 

 

EXHIBIT C

Applicable Microsoft Affiliates

 

If a Publisher Offering is offered in North or South America, Publisher is contracting with Microsoft Corporation, One Microsoft Way, Redmond, WA 98052, USA, and subject to the terms set forth in Section 10(b) with respect to jurisdiction and governing law.

 

If a Publisher Offering is offered in Europe, the Middle East or Africa, Publisher is contracting with Microsoft Ireland Operations Limited,  Atrium Block B, Carmenhall Road, Sandyford Industrial Estate, Dublin 18, Ireland and the laws of Ireland govern the interpretation of this Agreement and apply to claims for breach of it, regardless of conflict of laws principles.  Publisher and Microsoft irrevocably agree to the exclusive jurisdiction and venue of the courts of Ireland for all disputes arising out of or relating to this Agreement.  

 

If a Publisher Offering is offered in Japan, Publisher is contracting with Microsoft Co. Ltd (MSKK), Odakyu Southern Tower, 2-2-1 Yoyogi, Shibuya-ku, Tokyo 151-8583. The laws of Japan govern this Agreement and any matters arising out of or relating to it. Publisher and Microsoft irrevocably agree to the exclusive original jurisdiction and venue of the Tokyo District Court for all disputes arising out of or relating to this Agreement.

 

If a Publisher Offering is offered in Australia, Hong Kong SAR, India, Indonesia, Malaysia, New Zealand, or Singapore, Publisher is contracting with Microsoft Regional Sales Corporation, 438B Alexandra Road #04-09/12, Block B, Alexandra Technopark, Singapore 119968, and the laws of Singapore govern this Agreement. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, will be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Center (SIAC), which rules are deemed to be incorporated by reference into this clause. The Tribunal will consist of one arbitrator to be appointed by the Chairman of SIAC. The language of arbitration will be English. The decision of the arbitrator will be final, binding, and incontestable, and it may be used as a basis for judgment in any country or region.

 

If a Publisher Offering is offered in Korea, Publisher is contracting with Microsoft Korea, Inc., 6th Floor, POSCO Center, 892 Daichi-Dong, Kangnam-Gu, Seoul, 135-777, Korea. The laws of the Republic of Korea govern this contract. Publisher and Microsoft irrevocably agree to exclusive original jurisdiction and venue of the Seoul District Court for all disputes arising out of or relating to this Agreement.

 

Microsoft may change the Affiliate(s) with whom Publisher is contracting from time to time.  Microsoft will provide notice of such a change to Publisher in accordance with the Agreement.

 

 

 

 

 

 

 

 

 


 

EXHIBIT D

Canadian & U.S. Specific Terms

1)       Delivery of Publisher Offerings to Users in Canada, where Publisher designates Microsoft to allow access to a Publisher Offering to Users in Canada.

a.        The following acronyms shall have the following meanings:

                                                               i.      Canada Revenue Agency (“CRA”)

                                                              ii.      Ministere du Revenu du Quebec (“MRQ”)

                                                            iii.      Provincial retail sales tax (“PST”)

                                                            iv.      Goods and services tax/harmonized sales tax (“GST/HST”)

                                                              v.      Excise Tax Act (Canada) (“ETA”)

                                                            vi.      Quebec Sales Tax (“QST”)

b.       GST/HST

                                                               i.      If Publisher is a resident of Canada or is a non-resident of Canada that is required to register for GST/HST purposes pursuant to the ETA, it is a condition that Publisher is registered for GST/HST or have submitted an application to register for GST/HST to the CRA with an effective GST/HST registration date of no later than the Effective Date. Publisher shall provide Microsoft with satisfactory evidence of Publisher’s GST/HST registration (e.g., a copy of Publisher’s CRA confirmation letter or print-out from the GST/HST Registry on the CRA web site) at Microsoft’s request. Publisher warrants that it will notify Microsoft if it ceases to be registered for GST/HST.

                                                              ii.      If Publisher is registered for GST/HST purposes, Publisher: (A) agrees to enter into the election pursuant to subsection 177(1.1) of the ETA to have Microsoft collect, account for and remit GST/HST on sales of Publisher Offerings made to Users in Canada on Publisher’s behalf and have completed (including entering its valid GST/HST registration number), signed and returned to Microsoft Form GST506; and (B) acknowledges that GST/HST will be payable by Publisher to Microsoft in addition to the commission.

                                                            iii.      If Publisher is not registered for GST/HST purposes, Publisher (A) certifies that it is not registered for GST/HST purposes; (B) certifies that Publisher is not resident in Canada and does not carry on business in Canada for purposes of the ETA; (C) acknowledges that Microsoft will charge, collect and remit GST/HST on sales of Publisher Offerings to Users in Canada made on its behalf; and (D) acknowledges that the commission payable by Publisher to Microsoft is zero-rated for GST/HST purposes (i.e., GST/HST rate is 0%).

c.     Quebec Sales Tax

Terms defined in an Act respecting the Quebec Sales Tax (the “QSTA”)

                                                         i.            If Publisher is a resident of Quebec, it is a condition that Publisher is registered for QST or have submitted an application to register for QST to the MRQ.  Publisher shall provide Microsoft with satisfactory evidence of its QST registration (e.g., a copy of its MRQ confirmation letter or print-out from the QST Registry on the MRQ web site) at Microsoft request. Publisher warrants that it will notify Microsoft if it ceases to be registered for QST.

                                                        ii.            If Publisher is a resident of Quebec, Publisher: (A) certifies that Publisher is registered for QST; (B) agrees to enter into the election pursuant to section 41.0.1 of the QSTA to have Microsoft collect, account for and remit QST on sales of Publisher Offerings to Users in Quebec made on its behalf and have completed (including entering its valid QST registration number), signed and returned to Microsoft Form FP2506-V; and (C) acknowledges that Microsoft will not charge, collect or remit QST on sales of Publisher Offerings made on its behalf to Users located outside Quebec on the assumption that the Users are not resident in Quebec and not registered for QST purposes such that the sales are zero-rated for QST purposes.

                                                      iii.            If Publisher is not resident in Quebec, Publisher (A) certifies that it is not resident in Quebec; (B) certifies that it does not have a permanent establishment in Quebec; and (C) acknowledges Microsoft will charge, collect and remit QST on sales of Publisher Offerings to Users in Quebec made on its behalf.

 

2)       Delivery of Publisher Offerings to Users in the United States of America, where Publisher designates Microsoft to allow access to the Publisher Offering to Users in the United States:

a.         If Publisher is not a resident of the United States for U.S. federal income tax purposes, it will complete Internal Revenue Service Form W-8BEN and/or any other required tax forms and provide Microsoft with a copy of such completed form(s), and any other information necessary for compliance with applicable tax laws and regulations

b.        If Microsoft, in its reasonable belief, determines that any state or local sales, use or similar transaction tax may be due from Microsoft or Publisher in connection with the sale or delivery of any of the Publisher Offerings, Microsoft will collect and remit those taxes to the competent tax authorities. To the extent that the incidence of any such tax, or responsibility for collecting that tax, falls upon Publisher, Publisher authorizes Microsoft to act on its behalf in collecting and remitting that tax, but to the extent that Microsoft has not collected any such tax, or has not received reimbursement for that tax, from Users, Publisher shall remain primarily liable for the tax, and Publisher will reimburse Microsoft for any tax payments that Microsoft is required to make, but is not otherwise able to recover.