Microsoft Windows Azure Pass Trial Agreement

Last Updated October, 2011

1. What the Agreement Covers

This agreement is between the entity agreeing to these terms (“Customer,” “you” or “your”) and Microsoft Corporation, (“Microsoft, “we,” “us,” or “our”). If you are accepting this agreement on behalf of your employer or another legal entity, you represent and warrant that you have the authority to bind that entity and that you are agreeing to these terms on behalf of that entity. If you cannot truthfully make these representations, do not click “accept” below. The terms and conditions of this agreement apply to Customer’s access and use of certain trial versions of Microsoft Windows Azure pass, including any technology, information, software, materials, and updates that Microsoft makes available to Customer as part of such services (the “Services”). Unless otherwise expressly noted, the following terms apply to all Services provided to Customer under this agreement.

2. Data

2.1 Customer’s Data.

The Services may allow Customer to store, process, access, and query Data from Customer’s devices without having to replicate or move Data. “Data” means all data, including all text, sound, or image files that Customer uploads to or that is processed using the Services.

2.2 Customer’s Responsibility.

Customer is solely responsible for Data and information used to develop, operate or maintain any software programs or services it uses to access or use the Services.

2.3 Data Storage.

Microsoft will delete any Data that remains in the trial Services after this agreement terminates. Customer may migrate Data to a commercial version of the Services or backup the Data to its own system. , but otherwise Microsoft has no obligation to hold, export, or return any Data. Microsoft has no liability for the deletion of Customer’s Data.

3. The Services

3.1 Trial Services and Updates.

The Services are trial versions and may not work in the manner that a commercial version of the Services may function. Certain features may be missing or disabled. Microsoft may update the Services, which may result in the deletion of Customer’s Data. The Services may experience interruptions and extended downtime during which Data may not be accessed.

3.2 Commercial Releases.

Microsoft may change or update the Services at any time for future trials or commercial availability. Customer must enter into a separate agreement if it wishes to access and use those commercial Services.

3.3 Permissible use of the Services.

(a) Customer may only use the Services to test them for use with Customer’s Data. All such use is subject to Customer’s complying with this agreement, any policies and procedures we designate for use of the Services, and any limits on the number of users who may access or use the Services.

(b) Customer represents and warrants that:

i. it has, will obtain, and will maintain all necessary rights to its Data, and any other data, software programs or services it uses in connection with the Services;

ii. its use of such data, software programs or services does not infringe the intellectual property or other proprietary rights of any third party;

iii. it will not access or use the Services in a manner that violates the rights of any third party or which purports to subject Microsoft to any other obligations; and

iv. it will access and use the Services in a manner which complies with all laws and regulations.

3.4 Use Restrictions.

Customer may not:

(a) Remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the Services;

(b) Falsify any protocol or email header information (e.g., “spoofing”) within the Services; or

(c) Access or use the Services:

i. in any way prohibited by any law, regulation or governmental order or decree or that violates others’ legal rights;

ii. in any way that could harm the Services or impair anyone else’s use of the Services;

iii. to try to gain unauthorized access to any service, data, account or network by any means;

iv. to send “spam” (i.e., unsolicited bulk or commercial messages) or otherwise make available any offering designed to violate these terms (e.g., denial of service attacks, etc.); or

v. through any other Services subscription without the express permission of the subscription holder.

4. Proprietary Rights

4.1 Reservation of Rights; No Other License.

Microsoft reserves all rights not expressly granted in this agreement. No additional rights (including implied licenses, rights or covenants) are granted by implication, estoppel or otherwise. Except as expressly set forth herein, this agreement does not provide Customer with any license or rights to use any data, software programs or services, or to any related or enabling technologies that may be necessary to use such data, software programs or services. Any license or other terms associated with any data, software programs or services that access or use the Services do not apply to or bind Microsoft. Customer has no right of ownership or of control over the Services.

4.2 License to Microsoft.

Customer licenses to Microsoft (and its affiliates and necessary sublicensees), all intellectual property or other rights required to allow Microsoft to use or process Data or other information through the Services. Microsoft may only use such rights, Data and information to provide, operate, and improve the Services or support services (if any). Other than as necessary to provide the Services, Microsoft has no right of ownership or control over Customer’s Data or other information provided by Customer in connection with the use of the Services. Customer is solely responsible for protecting rights it has, or may have, in its Data or information.

5. Your Account

5.1 Account Setup.

Customer may access or use the Services only after it has:

(a) accepted the terms and conditions of this agreement;

(b) request a Services subscription and assigned by Microsoft with a Customer Windows Live ID; and

(c) created a Services ID and password for each end user using the Services.

Customer’s Services ID and password and any other credentials or tokens Microsoft provides are the Services subscription credentials needed to access or use the Services. These subscription credentials are confidential. Microsoft will not be liable for any loss resulting from an unauthorized person using Customer’s Services ID, passwords or any assigned credentials or tokens.

5.2 Windows Live ID.

Microsoft Windows Live ID is a multi-site authentication service that helps Customers sign in to web sites or Microsoft online services and conduct e-commerce transactions. The Services use Windows Live ID for authentication. Your use of Windows Live ID will be subject to the service agreement you enter into as a condition of signing up for the service.

5.3 Account Use.

Customer is solely responsible for all activity under its Services subscription. All individuals using the Services under Customer’s Services subscription must comply with this agreement.

6. Service Levels; Security

6.1 Service Levels.

Microsoft has no obligation to provide any support services for the Services. The Services may be periodically inaccessible for reasons including maintenance updates, power outages, system failures, extended downtime and other interruptions. During such periods, Customer may be unable to access or use all or a portion of the Services and some or all of Customer’s Data may be deleted. If Microsoft determines that an outage or interruption may cause risk to the Services, Microsoft may suspend the Services.

6.2 Security.

Microsoft may apply security technologies and procedures to help protect against unauthorized access or use of the Services. Microsoft does not guarantee the success of such technologies and procedures. Customer is solely responsible for the security, protection and backup of its Data, and any other data, software or services it uses in connection with the Services.

7. Privacy

The terms of this Section 7 apply only to the trial Services. They do not apply to the commercially released service.

7.1 Information Use and Disclosure by Microsoft.

With respect to these trial Services, Microsoft may access or disclose information about Customer, its account and/or the content of its or its users’ communications in order to:

(a) provide, operate, and improve Microsoft services;

(b) comply with the law or respond to lawful requests or legal process; or

(c) protect the rights or property of Microsoft or our customers, including the enforcement of Microsoft’s agreements or policies governing the use of the Services.

Personal data collected or otherwise processed by Microsoft in the performance of the Services may be transferred to, and stored and processed in, the United States or any other country in which Microsoft or its Affiliates or service providers maintain facilities. Microsoft abides by the Safe Harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Economic Area and Switzerland.

For more information on the privacy practices of these trial Services, read the privacy statement at http://azta.cloudapp.net/PrivacyStatement.htm.

7.2 Acknowledgments and Consent by Customer.

If Customer collects, stores, or processes personal information when using these trial Services, Customer agrees to comply with all privacy and data protection laws, taking into account the nature of the information to be processed, as well as the features and limitations of the Services as described in this agreement or as otherwise provided to Customer.

7.3 Communications.

The purpose of the trial Services offering is to obtain feedback regarding potential commercial versions of the services.

The administrative and/or billing contact information provided in connection with the Services may be used to contact Customer or its representatives about its subscription, its opinions about the trial Services, or its interest in continuing the account after commercial release of the services.

8. Use of Software with the Services.

Customer may need to install Microsoft software to use the Services. If so:

(a) Microsoft Software License Terms. You may install and use the software on your devices only for use with the Services and only until your right to use the Services terminates or expires.

(b) Additional Software. Any applicable license terms that accompany additional software apply. Microsoft reserves all other rights to such software. If you are a person agreeing to this agreement on behalf of an entity, your agreement to any additional software license terms that may accompany additional software will also constitute agreement to those additional terms on behalf of your entity, notwithstanding the fact that such additional software license terms may also be presented to each of Customer’s end users during the course of installation and set-up.

9. Notices

9.1 Notices to Customer.

Microsoft may provide Customer with notices in any manner Microsoft chooses, including by email or posting any such notices on a portal or community development center web site for the Services. Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. Notices provided via posting on a portal or community development center web site will be deemed given on the date they are posted. If you can access and use the Services, no other software and hardware is required to receive these notices.

9.2 Notices to Microsoft.

Customer will provide notices to Microsoft in the manner set forth in the customer support, “Contact Us,” “Feedback,” or “Help” area of the Services.

10. Feedback

10.1 Confidential Information.

“Confidential Information” is nonpublic information disclosed by Microsoft or Microsoft’s agents or contractors in connection with the Services (including as a result of your participation in the trial Services program) that is either designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Without limiting this provision, Confidential Information includes the terms of this agreement and the features and characteristics of the Services.

(a) Use. You may not disclose Confidential Information to any third party for five years after either your initial use of the Services or the commercial release of the Services, whichever occurs first. You may disclose confidential information only to your employees and consultants who (1) have a need to know the information; and (2) with whom you have a written agreement that protects the Confidential Information as much or more than this agreement.

(b) Safety Precautions. You will:

· take reasonable steps to protect the Confidential Information. These steps must be at least as protective as those you take to protect your own confidential information;

· promptly notify Microsoft if you discover any unauthorized use or disclosure of Confidential Information; and

· cooperate with Microsoft to regain control of the Confidential Information and prevent further unauthorized use or disclosure.

(c) Sharing Confidential Information with Affiliates. You may disclose the Confidential Information to affiliates and representatives. You remain responsible for any unauthorized use or disclosure. These disclosures may be made only on a need-to-know basis, subject to the obligations of this section. You are responsible for your affiliates’ and representatives’ compliance with this agreement.

(d) Exclusions. You may disclose Confidential Information in response to a judicial or governmental order provided you first (i) seek the highest level of protection available, and (ii) give written notice to Microsoft to allow it to seek a protective order or otherwise protect the information. Confidential information does not include information that

· becomes publicly known through no wrongful act;

· you received from a third party who did not breach confidentiality obligations to Microsoft or its suppliers; or

· you developed independently.

(e) Survival. Your duty to protect Confidential Information survives the termination or expiration of this agreement.

10.2 Feedback.

Customer licenses to Microsoft without charge all intellectual property or other rights necessary for Microsoft to use, share, and commercialize in any way or for any purpose any feedback about the Services Customer provides. Customer also licenses to all third parties without charge all intellectual property or other rights necessary for their products, technologies and services to use or interface with any specific parts of a Microsoft software or service that includes the feedback. Customer will not give feedback that is subject to any license that requires Microsoft to license its software or documentation or provide its services to third parties. The rights granted in this paragraph are perpetual and world-wide and survive the termination or expiration of this agreement.

10.3 Solicitation of Feedback.

As a participant in the Microsoft Windows Azure pass trial program, your feedback is valuable to Microsoft. You agree that Microsoft may contact you via email to solicit feedback regarding the Services.

11. Indemnification

Customer will indemnify, pay the defense costs of, and hold Microsoft, its affiliates, and its or their successors, officers, directors and employees harmless from and against any and all claims, demands, costs, liabilities, judgments, losses, expenses and damages (including attorneys' fees) arising out of, in connection with, or related to:

(a) Customer’s use of the Services in breach of this agreement or in violation of any applicable law or regulation; or

(b) any data, software programs or services that Customer uses in connection with the Services, including without limitation any claim that such data, software program or services, or any part thereof, infringes, misappropriates, or otherwise violates any copyright, patent, trade secret, trademark, or other legal right of any third party.

12. Disclaimer of Warranty

MICROSOFT PROVIDES THE SERVICES AND SUPPORT SERVICES (IF ANY) "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE." CUSTOMER BEARS THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AVAILABILITY OF DATA FROM THE SERVICE, AND EFFORT. MICROSOFT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR SUPPORT SERVICES (IF ANY). EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, MICROSOFT DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (A) REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT, (B) REPRESENTATIONS OR WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (C) REPRESENTATIONS OR WARRANTIES THAT ACCESS TO OR USE OF THE SERVICES WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, SECURE, OR THAT YOUR USE OF THE SERVICES WILL BE RELIABLE AND ACCURATE, INCLUDING WITHOUT LIMITATION STORING, READING, UPDATING OR DELETING YOUR DATA. NO ORAL OR WRITTEN STATEMENT MADE TO YOU IN THE CONTEXT OF PROVIDING THE SERVICES OR SUPPORT SERVICES (IF ANY) SHALL CREATE ANY WARRANTY THAT HAS BEEN EXPRESSLY DISCLAIMED IN THIS AGREEMENT.

13. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR THAT RELATE IN ANY WAY TO THIS AGREEMENT OR ITS PERFORMANCE. THIS EXCLUSION WILL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED, WHETHER THE PARTIES HAD BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER APPLICATION OF THE EXCLUSION CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. THIS EXCLUSION WILL NOT APPLY TO EITHER PARTY’S LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

MICROSOFT SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS IN THE SERVICES, INCLUDING WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS INCLUDING THOSE THAT AFFECT THE RECEIPT, ACCEPTANCE, PROCESSING, COMPLETION OR SETTLEMENT OF YOUR SYSTEMS.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential or other damages.

14. Suspension of Service

Microsoft may suspend or cancel your use of and access to all or any part of the Services at any time, for any reason and in its sole discretion.

15. Links to Third Party Sites

The Services may include links to third party sites. Microsoft does not control such sites and Microsoft is not responsible for the content of any linked site, any links contained in a linked site, or any changes or updates to such sites. Microsoft is not responsible for webcasting or any other form of transmission received from any linked site. Microsoft is providing these links to you, if at all, only as a convenience, and the inclusion of any link does not imply endorsement by Microsoft of the site.

16. Modifying the Terms; Additional Terms

16.1 Modifying the Terms.

Microsoft may modify this agreement at any time and will provide notice of any modifications. The most current version of the agreement is available via the link provided on the portal site for the Services. If you do not agree to any modifications, you must immediately stop using the Services. Your continued use of the Services constitutes acceptance of the modified agreement.

16.2 Additional Terms.

This agreement incorporates by reference any additional terms or conditions applicable to particular aspects of the Services, including without limitation the anti-spam policy.

17. Term; Termination

17.1 Term.

This agreement is effective on Customer’s acceptance. This agreement terminates upon expiration of the trial period specified in Customer’s email notification, unless mutually extended. If this agreement is extended, the agreement terminates on the date indicated in your extension email confirmation. Microsoft may extend this agreement in its discretion.

17.2 Termination.

Microsoft may suspend or cancel the Services, or terminate this agreement at any time for any reason. Upon cancellation, suspension or termination, Customer’s right to use the Services stops immediately and Customer must immediately remove all Data and applications from the Services. Customer is solely responsible for backing up its Data. Customer may stop using and accessing the Services at any time without further obligation, whether or not it deletes or extracts its Data.

18. No Third Party Beneficiaries

This agreement is only for the benefit of the parties and only they may enforce it. The parties do not intend to confer any right or benefit on any third party. No third party may commence or prosecute an action against a party on the basis that it is a third party beneficiary of this agreement.

19. No Waiver

Any delay or failure by Microsoft to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.

20. Choice of Law and Location for Resolving Disputes

The laws of the State of Washington, USA, govern the interpretation of this agreement, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or if you live outside the United States, the laws of the country that is the domicile of the organization or entity for which you are accessing or using the Services. The parties irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA, for all disputes arising out of or relating to this agreement. This agreement does not change your rights under the laws of your country if the laws of your country do not permit it to do so.

21. Interpreting the Agreement

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. This agreement, including any other policies or terms incorporated by reference, is the entire agreement between the parties regarding the Services. It supersedes any prior agreements or statements (whether oral or written) regarding the Services, and is separate and independent from any other agreement(s) that may exist between the parties.

22. Assignment

We may assign this agreement, in whole or in part, at any time without notice. You may not assign this agreement, or any part of it, to any other third party. Any attempt by you to do so is void. You may not transfer to a third party, either temporarily or permanently, any rights to use the Services or any part of them.

23. Limitation of claims.

Any claim related to this agreement or the Services is barred unless brought within one year from the date the claim could first be filed. This limitation applies to each party’s successors or assigns.

24. U.S. Export Jurisdiction

The Services and any software provided in connection with 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, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.

25. English Language Controls

The English language version of this agreement controls. If you are in Canada, it is the express wish of the parties that this agreement, and any associated documentation, be written and signed in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

26. Copyright and Trademark Notices

All contents of the Services are Copyright © 2011 Microsoft Corporation and/or its suppliers, One Microsoft Way, Redmond, Washington 98052-6399 U.S.A. All rights reserved. Copyright and other intellectual property laws and treaties protect any software or content provided as part of the Services. We or our suppliers own the title, copyright, and other intellectual property rights in the software or content. Microsoft, Windows Azure and/or other Microsoft products and services referenced herein may also be either trademarks or registered trademarks of Microsoft in the United States and/or other countries. Any rights not expressly granted herein are reserved.

Under Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to service provider's designated agent. inquiries not relevant to the following procedure will receive no response.

See Notice and Procedure for Making Claims of Copyright Infringement at http://www.microsoft.com/info/cpyrtInfrg.htm.