Microsoft Developer Services Agreement

This agreement is between you, the party accepting this agreement and us, the Microsoft entity listed in Exhibit A applicable to the location of your primary place of business, and applies to your use of the Services. This agreement consists of the terms below, Exhibit A, Exhibit B, terms incorporated by reference, terms applicable to other Microsoft web sites and services necessary to use the Services (for example, your Microsoft Account) and the Privacy Statement ( http://go.microsoft.com/fwlink/?LinkID=246330). Key terms are defined in Section 11. In addition, if you are a Windows Azure customer, this agreement supplements your existing Windows Azure agreement, and with the exception of billing terms, governs to the extent of any conflict with the Windows Azure terms.

1. Services.
   1. Right to use. We grant you the right to access and use the Services as described in this agreement, and only in accordance with this agreement.
   2. Manner of use. You may not: reverse engineer, decompile, disassemble or work around technical limitations in the Services, except where applicable law permits it despite this limitation; disable, tamper with or otherwise attempt to circumvent any mechanism that limits your use of the Services; rent, lease, lend, resell, transfer, or sublicense any Services to or for third parties, except as explicitly permitted herein or in license terms that accompany any Services component; use the Services for any purpose that is unlawful or prohibited by this agreement; use the Services in any manner that could damage, disable, overburden, or impair any Microsoft service, or the network(s) connected to any Microsoft service, or interfere with any other party’s use and enjoyment of any Services.
   3. Updates. We may make changes to the Services from time to time, including: the availability of features; how long, how much or how often any given feature may be used; and feature dependencies upon other services or software. We will provide you with prior notice before removing any material feature or functionality of the Developer Services (excluding Previews), unless security, legal or system performance considerations require an expedited removal.
   4. Preview features. We may make features available on a Preview basis. Previews may be subject to reduced or different security and support commitments, as further explained in any additional notices provided with the Preview. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into “General Availability”, and if we do make Previews “Generally Available” we may charge for any such features.

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2. Software.
   1. Microsoft Software. All Microsoft Software are the copyrighted works of Microsoft or its suppliers. Rights to access Microsoft Software on any device do not give you any right to implement Microsoft patents or other Microsoft intellectual property in software or devices that access that device. If Microsoft Software is distributed to you with its own license terms, those terms control except as modified by the rest of this Section 2.a. If we provide you with the option of running Microsoft Software within the Developer Services (for example, in a build)that is subject to Microsoft’s license terms, those terms are modified by the following:
      1. You may use such Microsoft Software only within the Developer Services with your permitted use of any applicable Developer Services role. If there is any conflict between this paragraph and the Microsoft Software license terms, this paragraph controls.
      2. This agreement does not grant you any rights to run the software outside of the Developer Services (for example, you may not run copies on your on-premises servers or other devices unless you separately obtain the license to do so).
      3. You must delete all copies of Microsoft Software licensed under this agreement and destroy any associated media if this agreement is terminated.
   2. Third party software. You are solely responsible for any third party software that you install or connect with any Service. You may only install or use any third party software with any Service in a way that does not subject our intellectual property or technology to any terms governing such software. We are not a party to and are not bound by any terms governing your use of any third party software. We do not grant any licenses or rights, express or implied, to such third party software. Subject to the foregoing:
      1. Proprietary software. If the Service allows you to access any third party software with proprietary license terms, those terms control.
      2. Open source software. If the Service allows you to access any third party software with open source software license terms (“Open Source”), the following applies:
         1. Relicensed through the Service. Open Source accessible through the Service is licensed to you by Microsoft solely to allow you to interact with the Service under this agreement. Copies of those applicable Open Source licenses and any other notices, if any, are included for your information only. However, Open Source accessible through the Documentation Portals that is clearly marked for download under an open source license is provided to you for use under those terms.
         2. Referenced by a third party. The Service may link to or reference Open Source scripts or code. Those third party scripts or code are licensed to you by third party licensors, not by Microsoft.
   3. Software without license terms. You may use other software we make available on the Documentation Portals without license terms solely to design, develop, and test your programs to run on Microsoft products and services; provided, that software made available through the Documentation Portals marked as “sample” or “example” and without license terms is licensed to you under the terms of the Microsoft Limited Public License.

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3. Microsoft Content.

   All Microsoft Content is the copyrighted work of Microsoft or its suppliers, and is governed by the terms of the license agreement that accompanies or is included with the Microsoft Content.

   1. Microsoft Content reuse rights. You may make a reasonable number of copies of the Microsoft Content for your internal use in designing, developing, and testing your software, products and services that is made available to you on the Documentation Portals without a license agreement. You must preserve the copyright notice in all copies of the Microsoft Content and ensure that both the copyright notice and this permission notice appear in those copies. Accredited educational institutions, such as K-12 schools, universities, and private or public colleges may download and reproduce Microsoft Content for distribution in the classroom for educational purposes.
   2. Application programming interfaces. Microsoft will not assert any of its patent rights on account of your products calling application programming interfaces that it publishes on the Documentation Portals (“APIs”) in order to receive services from the Microsoft product that exposes the APIs.

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4. Security, privacy, and Customer Data.
   1. Security. We maintain technical and organizational measures intended to protect Customer Data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction.
   2. Privacy and data location. We treat Customer Data in accordance with our Privacy Statement. We may transfer to, store, and process Customer Data in any country where we or our Affiliates or subcontractors have facilities used for Developer Services. We are a data processor (or sub-processor) acting on your behalf, and you appoint us to do these things with Customer Data in order to provide the Developer Services to you.
   3. Rights to Provide Customer Data. You are solely responsible for your Customer Data. You must have, and you hereby grant us, sufficient rights to use and distribute Customer Data (including Customer Data sourced from third parties) necessary for us to provide you the Developer Services without violating the rights of any third party, or otherwise obligating Microsoft to you or to any third party. We do not accept any additional obligations that may apply to Customer Data.
   4. Ownership of Customer Data. Except for software and Content we license to you, as between the parties, you retain all right, title and interest in and to Customer Data. We acquire no rights in Customer Data other than as described in this Section 4.
   5. Use of Customer Data. We will use Customer Data only to provide you the Developer Services. This use may include troubleshooting to prevent, find and fix problems with the operation of the Developer Services and ensuring compliance with this agreement. It may also include improving features for finding and protecting against threats to users. We may use usage patterns, trends, and other statistical data derived from Customer Data to provide, operate, maintain, and improve our products and services.
   6. Customer Data return and deletion. You may delete your Customer Data at any time. If you terminate your account we may delete Customer Data immediately without any retention period. We have no additional obligation to continue to hold, export or return Customer Data and have no liability whatsoever for deletion of Customer Data pursuant to this agreement.
   7. Third party requests of Customer Data. We will not disclose Customer Data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as you direct or unless required by law. We will ask any third party demanding access to your Customer Data to contact you directly using your basic contact information. We will use commercially reasonable efforts to notify you in advance of a compelled disclosure unless legally prohibited. You are responsible for responding to requests by a third party regarding your use of Services, such as a request to take down content under the Digital Millennium Copyright Act.
   8. Subcontractors. We may hire other companies to provide limited services on our behalf, such as customer support. Any such subcontractors will be permitted to obtain Customer Data only to deliver the services we have retained them to provide. We remain responsible for our subcontractors’ compliance with the obligations set forth in this agreement.
   9. Compliance with law. We will comply with all laws applicable to our provision of the Services, including applicable security breach notification laws, but not including any laws applicable to you or your industry that are not generally applicable to information technology services providers. You will comply with all laws applicable to your Customer Data, and use of the Services, including any laws applicable to you or your industry.
   10. Certifications and compliance. The Developer Services shall be subject to any security, privacy, and compliance practices specifically described for the Developer Services at the Windows Azure Trust Center ( http://go.microsoft.com/fwlink/?LinkId=303817). These obligations do not apply to any other elements of the Services.

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5. Customer accounts, customer conduct, identity services, and feedback.
   1. Account creation. If any of the Services requires you to open an account, you must complete the registration process by providing us with current, complete and accurate information. You may not select an account user name or identifier that impersonates someone else, is or may be illegal, or may be protected by trademark or other proprietary rights, is vulgar or offensive or may cause confusion. We reserve the right to reject and/or reassign these user names and Service identifiers in our sole discretion.
   2. Account ownership. If an account was created within the scope of employment or otherwise as an agent of another party, then that party is the account owner and is bound by this agreement.
   3. Responsibility for your accounts. You are responsible for: any and all activities that occur under your account; maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services; and promptly notifying our customer support team about any possible misuse of your accounts or authentication credentials, or any security incident related to the Services.
   4. Your conduct and the availability of third party content and links to third party content. For any public, community interaction you undertake on the Services you must follow the Services rules of conduct ( http://go.microsoft.com/fwlink/?LinkId=303819). We have no obligation to monitor the content and communications of third parties on the Services; however, we reserve the right to review and remove any such materials posted to the Documentation Portals in our sole discretion. Third parties that participate on the Services are not authorized Microsoft spokespersons, and their views do not necessarily reflect those of Microsoft.
   5. Identity usage across Services. We may provide Services that supplement Microsoft Software and rely upon your user account or other identity mechanism. We may use this information to identify you and authorize access to Microsoft Content, Microsoft Software, and other resources across the Services.
   6. Submissions and feedback. We do not claim ownership of any Submission unless otherwise agreed to by the parties. However, by providing a Submission, you are irrevocably granting Microsoft and its affiliated companies the right to make, use, modify, distribute and otherwise commercialize the Submission in any way and for any purpose (including by granting the general public the right to use your Submissions in accordance with this agreement, which may change over time). For Submissions provided to the Documentation Portals you further grant the right to publish specific identifying information detailed in the Privacy Statement in connection with your Submission. These rights are granted under all applicable intellectual property rights you own or control. No compensation will be paid with respect to the use of your Submissions. Microsoft is under no obligation to post or use any Submission, and Microsoft may remove any Submission at any time. By providing a Submission you warrant that you own or otherwise control all of the rights to your Submission and that your Submission is not subject to any rights of a third party (including any personality or publicity rights of any person).
   7. Services accessible only to invited customers. Elements of the Services may be accessible to you on an invitation only basis, for example as part of a program for using pre-release Services and providing feedback to us (e.g., through the Connect portal). Those Services are confidential information of Microsoft. You may not disclose this confidential information to any third party for a period of five years. This restriction does not apply to any information that is or becomes publicly available without a breach of this restriction, was lawfully known to the receiver of the information without an obligation to keep it confidential, is received from another source who can disclose it lawfully and without an obligation to keep it confidential, or is independently developed. You may disclose this confidential information if required to comply with a court order or other government demand that has the force of law. Before doing so, you must seek the highest level of protection available and, when possible, give us enough prior notice to provide a reasonable chance to seek a protective order.

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6. Term, termination, and suspension.
   1. Agreement Term and termination. You may terminate this agreement at any time. If you have purchased access to Developer Services through Windows Azure then you must pay any amounts due and owing before the termination is effective.
   2. Regulatory. In any country where any current or future government regulation or requirement applies to us, but not generally to businesses operating there, presents a hardship to us operating the Services without change, and/or causes us to believe this agreement or the Services may be in conflict with any such regulation or requirement, we may change the Services or terminate the agreement. Your sole remedy for such changes to the Services under this Section is to terminate this agreement.
   3. Suspension. We may suspend your use of the Services if: (1) reasonably needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement under Section 8 within a reasonable time; or (3) you violate this agreement. We will attempt to suspend access to the minimum necessary part of the Services while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate this agreement and delete your Customer Data without any retention period.
   4. Termination for non-usage. We may suspend or terminate a Service accounts after a prolonged period of inactivity. For Developer Services, if you have a free account we may terminate this agreement and/or delete any Customer Data automatically generated during the Developer Services sign up process if you fail to upload or create any Customer Data within 90 days of your initial provisioning of the Developer Service. We will provide you with notice prior to any account suspension or termination, or Customer Data deletion.
   5. Termination of Access to Documentation Portals. We reserve the right to terminate your access to the Documentation Portals at any time, without notice, for any reason whatsoever.

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7. Warranties.
   1. Microsoft Services warranty. If you are a Windows Azure customer who has purchased access to the Developer Services, then we warrant that the Developer Services will satisfy the SLA during the Term for the paid for portion of the Developer Services. Your only remedies for breach of this limited warranty are those in the SLA. This warranty is subject to the following limitations:
      1. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
      2. this limited warranty does not cover problems caused by accident, abuse or use of the Developer Services in a manner inconsistent with this agreement, or resulting from events beyond our reasonable control;
      3. this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
      4. this limited warranty does not apply to Previews or free offerings.
      OTHER THAN THIS WARRANTY, OR EXCEPT AS WARRANTED IN A SEPARATE AGREEMENT, MICROSOFT AND ITS RESPECTIVE SUPPLIERS PROVIDE THE SERVICES (INCLUDING THE CONTENT AND APIS) “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” YOU BEAR THE RISK OF USING IT. WE PROVIDE NO WARRANTIES, GUARANTEES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. THESE DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, INCLUDING APPLICATION TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
   2. Third party content and materials. MICROSOFT DOES NOT CONTROL, REVIEW, REVISE, ENDORSE, OR ACCEPT RESPONSIBILITY FOR ANY THIRD PARTY CONTENT, INFORMATION, MESSAGES, MATERIALS, PROJECTS ACCESSIBLE FROM OR LINKED THROUGH THE SERVICES, AND, EXCEPT AS WARRANTED IN A SEPARATE AGREEMENT, MICROSOFT MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT AND SHALL NOT BE RESPONSIBLE FOR ANY OF THE FOREGOING. ANY DEALINGS YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.

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8. Defense of claims.
   1. Defense. We will defend you against any claims made by an unaffiliated third party that the Developer Services or Developer Services Software infringe its patent, copyright or trademark or makes unlawful use of its trade secret. You will defend us against any claims made by an unaffiliated third party that any (1) Non-Microsoft Product that is not made available through the Developer Services or Developer Services Software or (2) Customer Data you provide directly or indirectly in using the Services infringe the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret.
   2. Limitations. Our obligations in Section 8.a will not apply to a claim or award based on: (1) Customer Data, Non-Microsoft Product, modifications you make to the Services, or materials you provide or make available as part of using the Services; (2) your combination of the Services with, or damages based upon the value of, a Non-Microsoft Product, data or business process; (3) your use of a Microsoft trademark without our express written consent, or your use of the Services after we notify you to stop due to a third-party claim; or (4) your redistribution of the Services to, or use for the benefit of, any unaffiliated third party.
   3. Remedies. If we reasonably believe that a claim under Section 8.a may bar your use of the Developer Services or Developer Services Software, we will seek to: (1) obtain the right for you to keep using it; or (2) modify or replace it with a functional equivalent. If these options are not commercially reasonable, we may terminate your rights to use the Developer Services or Developer Services Software.
   4. Obligations. Each party must notify the other promptly of a claim under this Section 8. The party seeking protection must (1) give the other sole control over the defense and settlement of the claim; and (2) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment (or settlement that the other consents to). The parties’ respective rights to defense and payment of judgments or settlements under this Section are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law rights.

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9. Limitation of liability.
   1. Limitation. The aggregate liability of each party under this agreement is limited to direct damages up to the amount paid under this agreement for the Developer Services giving rise to that liability during the 12 months before the liability arose, or for Services provided free of charge, Five United States dollars ($5.00 USD).
   2. EXCLUSION. NEITHER PARTY, NOR ITS SUPPLIERS WILL BE LIABLE FOR LOSS OF REVENUE, LOST PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF THE PARTY KNEW THEY WERE POSSIBLE.
   3. Exceptions to Limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties’ obligations under Section 8 or Exhibit A; or (2) breach of any confidentiality obligation or violation of the other's intellectual property rights.

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10. Miscellaneous.
    1. No additional rights granted. We reserve all rights not expressly granted under this agreement, and no other rights are granted under this agreement by implication or estoppel or otherwise.
    2. Notices.
       You must send notices by mail to the address listed for the Microsoft contracting entity listed in Exhibit A applicable to your primary place of business, with a copy to:
                       Microsoft Legal and Corporate Affairs (Developer Division)
                       One Microsoft Way
                       Redmond, WA 98052 USA
       You agree to receive electronic notices from us, which will be sent by email to the account administrator you specify for the Developer Services, to your email address of record for the Documentation Portals, or to your contact information of record for any other Services. Notices are effective on the date on the return receipt or, for email, when sent.
    3. Assignment. You may not assign this agreement either in whole or in part.
    4. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
    5. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
    6. No agency. We are independent contractors. This agreement does not create an agency, partnership or joint venture.
    7. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.
    8. Applicable law and venue. The choice of law and venue applicable to the geography of your primary place of business is listed in Exhibit A.
    9. Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. Additional terms applicable to this agreement based on the geography of your primary place of business are listed in Exhibit A.
    10. Survival. The following provisions will survive this agreement’s termination: 1.b, 2.a-b, 4, 5.a-d, 5.f-g, 6, 7, 8, 9, 10, 11, Exhibit A and all other definitions.
    11. U.S. export jurisdiction. The Services are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
    12. International availability. Availability of the Services, including specific features and language versions, varies by country.
    13. Force majeure. Neither party will be liable for any failure in performance due to causes beyond its 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 Services).
    14. Modifications. We may modify this agreement at any time with or without individual notice to you by posting a revised version on the legal information section of the Developer Services and Documentation Portals (or an alternate site we identify), or by notifying you in accordance with Section 10.b. Any modifications will be effective upon your continued use of a Service.
    15. Notices and procedure for making claims of copyright infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to our designated agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL NOT RECEIVE A RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement ( http://www.microsoft.com/info/cpyrtInfrg.htm).

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11. Definitions.

    Any reference in this agreement to “day” will be a calendar day.

    “Affiliate” means any legal entity that a party owns or that owns a party, with a 50% or greater interest.

    “Content” means documents, photographs, videos, and other graphical, textual, or audio-visual content that may be subject to copyright protection.

    “Customer Data” means any Content or other data, including all text, sound, software, or image files that are provided to us by, or on behalf of, you through your use of the Developer Services for use by you or your authorized users. Customer Data does not include Submissions or any other Content or data that you submit to the Documentation Portals or otherwise provide via the Developer Services for public access.

    “Developer Services” means Team Foundation Service, the Services Portal, the Visual Studio profile services, and other services we identify as governed by this agreement.

    “Developer Services Software” means Microsoft software we provide to you as part of the Developer Services for use with the Developer Services.

    “Documentation Portals” means the Microsoft developer network content and marketing site available at http://msdn.microsoft.com and information technology specialist content, marketing site available at http://technet.microsoft.com, or at alternate sites we identify.

    “Microsoft Content” means Content on the Services provided by Microsoft and its suppliers.

    “Microsoft Limited Public License” means the Microsoft Limited Public License software license, a copy of which is provided in Exhibit B.

    “Microsoft Software” means Microsoft software and computer code, including sample code and Developer Services Software.

    “Non-Microsoft Product” is any software, data, service, website or other product licensed, sold or otherwise provided to you by an entity other than us, whether you obtained it via our Services or elsewhere.

    “Preview” means preview, beta, or other pre-release versions of the Developer Services or Developer Services Software offered by Microsoft.

    “Privacy Statement” means the Services privacy statement ( http://go.microsoft.com/fwlink/?LinkID=246330).

    “Services” means the Developer Services, Documentation Portals, the Microsoft partner site available at http://connect.microsoft.com, and Microsoft Software we make available to you under this agreement.

    “SLA” means the commitments we make regarding delivery or performance of the Developer Services ( http://go.microsoft.com/fwlink/?LinkId=309360).

    “Submissions” means Content, code, comments, feedback, suggestions, information or materials that you provide via the Documentation Portals or any Services for public access (rather than for your personal use or use by your authorized users). Submissions do not include Customer Data.

    “we” and “us” means the Microsoft entity listed in Exhibit A applicable to your location and its Affiliates, as appropriate.

    “you” and “your” means the person or entity accepting this agreement to use the Services.

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