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Microsoft Cloud Agreement
This Microsoft Cloud Agreement is entered into between the entity you represent, or, if you do not designate
an entity in connection with a Subscription purchase or renewal, you individually (“Customer”), and
Microsoft Ireland Operations Limited (“Microsoft”). It consists of the terms and conditions below, Use
Rights, SLA, and all documents referenced within those documents (together, the “agreement”). It is
effective on the date that your Reseller provisions your Subscription. Key terms are defined in Section 10.
1.
Grants, rights and terms.
All rights granted under this agreement are non-exclusive and non-transferable and apply as long as
neither Customer nor any of its Affiliates is in material breach of this agreement.
a. Software.
Upon acceptance of each order, Microsoft grants Customer a limited right to use
the Software in the quantities ordered.
(i) Use Rights.
The Use Rights in effect when Customer orders Software will apply to
Customer’s use of the version of the Software that is current at the time. For future versions
and new Software, the Use Rights in effect when those versions and Software are first
released will apply. Changes Microsoft makes to the Use Rights for a particular version
will not apply unless Customer chooses to have those changes apply.
(ii) Temporary and perpetual licenses.
Licenses available on a subscription basis are
temporary. For all other licenses, the right to use Software becomes perpetual upon
payment in full.
b. Online Services.
Customer may use the Online Services as provided in this agreement.
(i) Online Services Terms.
The Online Services Terms in effect when Customer orders or
renews a subscription to an Online Service will apply for the applicable subscription term.
For Online Services that are billed periodically based on consumption, the Online Services
Terms current at the start of each billing period will apply to usage during that period.
(ii) Suspension.
Microsoft may suspend use of an Online Service during Customer’s violation
of the Acceptable Use Policy or failure to respond to a claim of alleged infringement.
Microsoft will give Customer notice before suspending an Online Service when reasonable.
(iii) End Users.
Customer controls access by End Users, and is responsible for their use of
the Product in accordance with this agreement. For example, Customer will ensure End
Users comply with the Acceptable Use Policy.
(iv) Customer Data.
Customer is solely responsible for the content of all Customer Data.
Customer will secure and maintain all rights in Customer Data necessary for Microsoft to
provide the Online Services to Customer without violating the rights of any third party or
otherwise obligating Microsoft to Customer or to any third party. Microsoft does not and
will not assume any obligations with respect to Customer Data or to Customer’s use of the
Product other than as expressly set forth in this agreement or as required by applicable
law.
(v) Responsibility for your accounts.
Customer is responsible for maintaining the
confidentiality of any non-public authentication credentials associated with Customer’s use
of the Online Services. Customer must promptly notify customer support about any
possible misuse of Customer’s accounts or authentication credentials or any security
incident related to the Online Services.
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c. License transfers.
License transfers are not permitted, except that Customer may transfer
only fully-paid perpetual licenses to (1) an Affiliate or (2) a third party, solely in connection with
the transfer of hardware or employees to whom the licenses have been assigned to the third
party as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer
or an Affiliate. Upon such transfer, Customer and its Affiliates must uninstall and discontinue
using the licensed Product and render any copies unusable. Nothing in this agreement prohibits
the transfer of Software to the extent allowed under applicable law if the distribution right has
been exhausted.
d. Reservation of rights.
Products are protected by copyright and other intellectual property
rights laws and international treaties. Microsoft reserves all rights not expressly granted in this
agreement. No rights will be granted or implied by waiver or estoppel. Rights to access or use
Software on a device do not give Customer any right to implement Microsoft patents or other
Microsoft intellectual property in the device itself or in any other software or devices.
e. Restrictions.
Customer may use the Product only in accordance with this agreement.
Customer may not (and is not licensed to): (1) reverse engineer, decompile or disassemble
any Product or Fix, or attempt to do so; (2) install or use non-Microsoft software or technology
in any way that would subject Microsoft’s intellectual property or technology to any other license
terms; or (3) work around any technical limitations in a Product or Fix or restrictions in Product
documentation. Customer may not disable, tamper with, or otherwise attempt to circumvent
any billing mechanism that meters Customer’s use of the Online Services. Except as expressly
permitted in this agreement or Product documentation, Customer may not distribute,
sublicense, rent, lease, lend, resell or transfer and Products, in whole or in part, or use them to
offer hosting services to a third party.
f.
Preview releases.
Microsoft may make Previews available.
Previews are provided “as-is,”
“with all faults,” and “as-available,” and are excluded from the SLA and all limited
warranties provided in this agreement.
Previews may not be covered by customer support.
Previews may be subject to reduced or different security, compliance, and privacy
commitments, as further explained in the Online Services Terms and any additional notices
provided with the Preview. Microsoft may change or discontinue Previews at any time without
notice. Microsoft also may choose not to release a Preview into “General Availability.”
g. Verifying compliance for Products.
(i) Right to verify compliance.
Customer must keep records relating to all use and
distribution of Products by Customer and its Affiliates. Microsoft has the right, at its
expense, to verify compliance with the Products’ license terms. Customer must promptly
provide any information reasonably requested by the independent auditors retained by
Microsoft in furtherance of the verification, including access to systems running the
Products and evidence of licenses for Products that Customer hosts, sublicenses, or
distributes to third parties. Customer agrees to complete Microsoft’s self-audit process,
which Microsoft may request as an alternative to a third party audit.
(ii) Remedies for non-compliance.
If verification or self-audit reveals any unlicensed use of
Products, then within 30 days (1) Customer must order sufficient licenses to cover its use,
and (2) if unlicensed use is 5% or more, Customer must reimburse Microsoft for the costs
Microsoft incurred in verification and acquire the necessary additional licenses at 125% of
the price, based on the then-current price last and customer price level. The unlicensed
use percentage is based on the total number of licenses purchased for current use
compared to the actual installed base. If there is no unlicensed use, Microsoft will not
subject Customer to another verification for at least one year. By exercising the rights and
procedures described above, Microsoft does not waive its rights to enforce this agreement
or to protect its intellectual property by any other legal means.
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(iii) Verification process.
Microsoft will notify Customer at least 30 days in advance of its
intent to verify Customers’ compliance with the license terms for the Products Customer
and its Affiliates use or distribute. Microsoft will engage an independent auditor, which will
be subject to a confidentiality obligation. Any information collected in the self-audit will be
used solely for purposes of determining compliance. This verification will take place during
normal business hours and in a manner that does not unreasonably interfere with
Customer’s operations.
2.
Subscriptions, ordering.
a. Choosing a Reseller.
Customer must choose and maintain a Reseller authorized within its
region. If Microsoft or Reseller chooses to discontinue doing business with each other,
Customer must choose a replacement Reseller or purchase a Subscription directly from
Microsoft, which may require Customer to accept different terms.
b. Available Subscription offers.
The Subscription offers available to Customer will be
established by its Reseller and generally can be categorized as one or a combination of the
following:
(i) Online Services Commitment Offering.
Customer commits in advance to purchase a
specific quantity of Online Services for use during a Term and to pay upfront or on a
periodic basis for continued use of the Online Service.
(ii) Consumption Offering (also called Pay-As-You-Go).
Customer pays based on actual
usage with no upfront commitment.
(iii) Limited Offering.
Customer receives a limited quantity of Online Services for a limited
term without charge (for example, a free trial) or as part of another Microsoft offering (for
example, MSDN). Provisions in this agreement with respect to the SLA and data retention
may not apply.
(iv) Software Commitment Offering.
Customer commits in advance to purchase a specific
quantity of Software for use during a Term and to pay upfront or on a periodic basis for
continued use of the Software.
c. Ordering.
(i)
Orders must be placed through Customer’s designated Reseller. Customer may place
orders for its Affiliates under this agreement and grant its Affiliates administrative rights to
manage the Subscription, but, Affiliates may not place orders under this agreement.
Customer also may assign the rights granted under Section 1.a and 1.b to a third party for
use by that third party in Customer’s internal business. If Customer grants any rights to
Affiliates or third parties with respect to Software or Customer’s Subscription, such Affiliates
or third parties will be bound by this agreement and Customer agrees to be jointly and
severally liable for any actions of such Affiliates or third parties related to their use of the
Products.
(ii)
Customer’s Reseller may permit Customer to modify the quantity of Online Services
ordered during the Term of a Subscription. Additional quantities of Online Services added
to a Subscription will expire at the end of that Subscription.
d. Pricing and payment.
Prices for each Product and any terms and conditions for invoicing and
payment will be established by Customer’s Reseller.
e. Renewal.
(i)
Upon renewal of a Subscription, Customer may be required to sign a new agreement, a
supplemental agreement or an amendment to this agreement.
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(ii)
Customer’s Subscription will automatically renew unless Customer provides its Reseller
with notice of its intent not to renew prior to the expiration of the Term.
f.
Eligibility for Academic, Government and Nonprofit versions.
Customer agrees that if it is
purchasing an academic, government or nonprofit offer, Customer meets the respective
eligibility requirements listed at the following sites:
(i)
For academic offers, the requirements for educational institutions (including administrative
offices or boards of education, public libraries, or public museums) listed at
http://go.microsoft.com/academic
;
(ii)
For government offers, the requirements listed at
http://go.microsoft.com/government
; and
(iii)
For nonprofit offers, the requirements listed at
http://go.microsoft.com/nonprofit
.
Microsoft reserves the right to verify eligibility at any time and suspend the Online Service if the
eligibility requirements are not met.
g. Taxes.
The parties are not liable for any of the taxes of the other party that the other party is
legally obligated to pay and which are incurred or arise in connection with or related to the
transactions contemplated under this agreement, and all such taxes will be the financial
responsibility of the party who is obligated by operation of law to pay such tax.
3.
Term, termination.
a. Agreement term and termination.
This agreement will remain in effect until the expiration or
termination of Customer’s Subscription, whichever is earliest. Customer may terminate this
agreement at any time by contacting its Reseller. The expiration or termination of this
agreement will only terminate Customer’s right to place new orders for additional Products
under this agreement.
b. Termination for cause.
If either party breaches this Agreement, the other party may terminate
the breached agreement (in whole or in part, including orders) upon notice. If the breach is
curable within 30 days, then the terminating party must provide 30 days’ notice to the breaching
party and an opportunity to cure the breach.
c. Cancel a Subscription.
Customer’s Reseller will establish the terms and conditions, if any,
upon which Customer may cancel a Subscription.
4.
Security, privacy, and data protection.
a. Reseller Administrator Access and Customer Data.
Customer acknowledges and agrees
that (i) once Customer has chosen a Reseller, that Reseller will be the primary administrator of
the Online Services for the Term and will have administrative privileges and access to
Customer Data, however, Customer may request additional administrator privileges from its
Reseller; (ii) Customer can, at its sole discretion and at any time during the Term, terminate its
Reseller’s administrative privileges; (iii) Reseller’s privacy practices with respect to Customer
Data or any services provided by Reseller are subject to the terms of Customer’s agreement
with its Reseller and may differ from Microsoft’s privacy practices; and (iv) Reseller may collect,
use, transfer, disclose, and otherwise process Customer Data, including personal data.
Customer consents to Microsoft providing Reseller with Customer Data and information that
Customer provides to Microsoft for purposes of ordering, provisioning and administering the
Online Services.
b.
Customer consents to the processing of personal information by Microsoft and its agents to
facilitate the subject matter of this agreement. Customer may choose to provide personal
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information to Microsoft on behalf of third parties (including your contacts, resellers,
distributors, administrators, and employees) as part of this agreement. Customer will obtain
all required consents from third parties under applicable privacy and data protection laws before
providing personal information to Microsoft.
c.
Additional privacy and security details are in the Online Services Terms. The commitments
made in the Online Services Terms only apply to the Online Services purchased under this
agreement and not to any services or products provided by a Reseller. If Customer uses
software or services that are hosted by a Reseller, that use will be subject to Reseller’s privacy
practices, which may differ from Microsoft’s.
d.
As and to the extent required by law, Customer shall notify the individual users of the Online
Services that their data may be processed for the purpose of disclosing it to law enforcement
or other governmental authorities as directed by Reseller or as required by law, and Customer
shall obtain the users’ consent to the same.
e.
Customer appoints Reseller as its agent for purposes of interfacing with and providing
instructions to Microsoft for purposes of this Section 4.
5.
Warranties.
a. Limited warranty.
(i) Software.
Microsoft warrants that each version of the Software will perform substantially
as described in the applicable Product documentation for one year from the date Customer
is first licensed for that version. If it does not, and Customer notifies Microsoft within the
warranty term, then Microsoft will, at its option, (1) return the price Customer paid for the
Software license or (2) repair or replace the Software.
(ii) Online Services.
Microsoft warrants that each Online Service will perform in accordance
with the applicable SLA during Customer’s use. Customer’s remedies for breach of this
warranty are in the SLA.
The remedies above are Customer’s sole remedies for breach of the warranties in this section.
Customer waives any breach of warranty claims not made during the warranty period.
b. Exclusions.
The warranties in this agreement do not apply to problems caused by accident,
abuse or use inconsistent with this agreement, including failure to meet minimum system
requirements. These warranties do not apply to free or trial products, Previews, Limited
Offerings, or to components of Products that Customer is permitted to redistribute.
c. Disclaimer. Except for the limited warranties above, Microsoft provides no warranties
or conditions for Products and disclaims any other express, implied, or statutory
warranties for Products, including warranties of quality, title, non-infringement,
merchantability and fitness for a particular purpose.
6.
Defense of third party claims.
The parties will defend each other against the third-party claims described in this section and will pay the
amount of any resulting adverse final judgment or approved settlement, but only if the defending party is
promptly notified in writing of the claim and has the right to control the defense and any settlement of it.
The party being defended must provide the defending party with all requested assistance, information,
and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it
incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for
such claims.
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a. By Microsoft.
Microsoft will defend Customer against any third-party claim to the extent it
alleges that a Product or Fix made available by Microsoft for a fee and used within the scope
of the license granted under this agreement (unmodified from the form provided by Microsoft
and not combined with anything else), misappropriates a trade secret or directly infringes a
patent, copyright, trademark or other proprietary right of a third party. If Microsoft is unable to
resolve a claim of infringement under commercially reasonable terms, it may, as its option,
either: (1) modify or replace the Product or fix with a functional equivalent; or (2) terminate
Customer’s license and refund any prepaid license fees (less depreciation on a five-year,
straight-line basis) for perpetual licenses and any amount paid for Online Services for any
usage period after the termination date. Microsoft will not be liable for any claims or damages
due to Customer’s continued use of a Product or Fix after being notified to stop due to a third-
party claim.
b. By Customer.
To the extent permitted by applicable law, Customer will defend Microsoft
against any third-party claim to the extent it alleges that: (1) any Customer Data or non-
Microsoft software hosted in an Online Service by Microsoft on Customer’s behalf
misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other
proprietary right of a third party; or (2) Customer’s use of any Product or Fix, alone or in
combination with anything else, violates the law or harms a third party.
7.
Limitation of liability.
For each Product, each party’s maximum, aggregate liability to the other under this agreement is limited to
direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for
the applicable Products during the term of this agreement, subject to the following:
a. Online Services.
For Online Services, Microsoft’s maximum liability to Customer for any
incident giving rise to a claim will not exceed the amount Customer paid for the Online Service
during the 12 months before the incident; provided that in no event will Microsoft’s aggregate
liability for any Online Service exceed the amount paid for that Online Service during the
Subscription.
b. Free Products and distributable code.
For Products provided free of charge and code 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.
c. Exclusions. In no event will either party be liable for loss of revenue or indirect, special,
incidental, consequential, punitive, or exemplary damages, or damages for loss of use,
lost profits, revenues, business interruption, or loss of business information, however
caused or on any theory of liability.
d. Exceptions.
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 6; or (2) violation
of the other's intellectual property rights.
8.
Support and Professional Services.
Customer’s Reseller will provide details on support services available for Products purchased under this
agreement. Support services may be performed by Reseller or its designee, which in some cases may be
Microsoft. If Customer purchases Professional Services under this agreement, the performance of those
Professional Services will be subject to the terms and conditions in the Use Rights.
9.
Miscellaneous.
a. Notices.
You must send notices by mail, return receipt requested, to the address below.
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Notices should be sent to:
Microsoft Ireland Operations Limited
South County Business Park
Leopardstown
Dublin 18
You agree to receive electronic notices from us, which will be sent by email to the account
administrator(s) named for your Subscription. Notices are effective on the date on the return
receipt or, for email, when sent. You are responsible for ensuring that the email address for
the account administrator(s) named for your Subscription is accurate and current. Any email
notice that we send to that email address will be effective when sent, whether or not you actually
receive the email.
b. Assignment.
You may not assign this agreement either in whole or in part. Microsoft may
transfer this agreement without your consent, but only to one of Microsoft’s Affiliates. Any
prohibited assignment is void.
c. Severability.
If any part of this agreement is held unenforceable, the rest remains in full force
and effect.
d. Waiver.
Failure to enforce any provision of this agreement will not constitute a waiver.
e. No agency.
This agreement does not create an agency, partnership, or joint venture.
f.
No third-party beneficiaries.
There are no third-party beneficiaries to this agreement.
g. Use of contractors.
Microsoft may use contractors to perform services, but will be responsible
for their performance, subject to the terms of this agreement.
h. Microsoft as an independent contractor.
The parties are independent contractors.
Customer and Microsoft each may develop products independently without using the other’s
confidential information.
i.
Agreement not exclusive.
Customer is free to enter into agreements to license, use or
promote non-Microsoft products or services.
j.
Applicable law and venue.
This agreement is governed by the laws of Ireland. If Microsoft
brings an action to enforce this agreement, Microsoft will bring it in the jurisdiction where
Customer has its headquarters. If Customer brings an action to enforce this agreement,
Customer 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.
k. Entire agreement.
This agreement is the entire agreement concerning its subject matter and
supersedes any prior or concurrent communications. In the case of a conflict between any
documents in this agreement that is not expressly resolved in those documents, their terms will
control in the following order of descending priority: (1) this agreement, (2) the Product Terms,
(3) the Online Services Terms, and (4) any other documents in this agreement.
l.
Survival.
All provisions survive termination of this agreement except those requiring
performance only during the term of the agreement.
m. U.S. export jurisdiction.
Products are subject to U.S. export jurisdiction. Customer must
comply with all applicable international and national laws, including the U.S. Export
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Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-
use and destination restrictions issued by U.S. and other governments related to Microsoft
products, services, and technologies.
n. Force majeure.
Neither party will be liable for any failure in performance due to causes beyond
that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood,
severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism
(including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or
omissions of regulatory or governmental bodies (including the passage of laws or regulations
or other acts of government that impact the delivery of Online Services)). This Section will not,
however, apply to your payment obligations under this agreement.
o. Contracting authority.
If you are an individual accepting these terms on behalf of an entity,
you represent that you have the legal authority to enter into this agreement on that entity’s
behalf.
p. Waiver of right to void online purchases.
To the maximum extent permitted by applicable
law, Customer waives its 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.
10.
Definitions.
Any reference in this agreement to “day” will be a calendar day.
“Acceptable Use Policy” is set forth in the Online Services Terms.
“Affiliate” means any legal entity that a party owns, that owns a party, or that is under common ownership
with a party. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an
entity.
“Consumption Offering”, “Commitment Offering”, or “Limited Offering” describe categories of Subscription
offers and are defined in Section 2.
“Customer Data” is defined in the Online Services Terms.
“End User” means any person you permit to access Customer Data hosted in the Online Services or
otherwise use the Online Services.
“Fix” means a Product fix, modifications or enhancements, or their derivatives, that Microsoft either
releases generally (such as Product service packs) or provides to Customer to address a specific issue.
“Licensing Site” means
http://www.microsoft.com/licensing/contracts
or a successor site.
“Non-Microsoft Product” is defined in the Online Services Terms.
“Online Services” means any of the Microsoft-hosted online services subscribed to by Customer under this
agreement, including Microsoft Dynamics Online Services, Office 365 Services, Microsoft Azure Services,
or Microsoft Intune Online Services.
“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services
published on the Licensing Site and updated from time to time.
“Previews” means preview, beta, or other pre-release version or feature of the Online Services or Software
offered by Microsoft to obtain customer feedback.
“Product” means all products identified in the Product Terms, such as all Software, Online Services and
other web-based services, including Previews.
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“Product Terms” means the document that provides information about Microsoft Products and Professional
Services available through volume licensing. The Product Terms document is published on the Licensing
Site and is updated from time to time.
“Professional Services” means Product support services and Microsoft consulting services provided to
Customer under this agreement. “Professional Services” does not include Online Services.
“Reseller” means an entity authorized by Microsoft to resell Software licenses and Online Service
Subscriptions under this program and engaged by you to provide assistance with your Subscription.
“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services
and is published on the Licensing Site.
“Software” means licensed copies of Microsoft software identified on the Product Terms. Software does
not include Online Services, but Software may be a part of an Online Service.
“Subscription” means an enrollment for Online Services for a defined Term as established by your Reseller.
“Term” means the duration of a Subscription (e.g., 30 days or 12 months).
“Use Rights” means the use rights or terms of service for each Product published on the Licensing Site
and updated from time to time. The Use Rights supersede the terms of any end user license agreement
that accompanies a Product. The Use Rights for Software are published by Microsoft in the Product Terms.
The Use Rights for Online Services are published in the Online Services Terms.
