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1. ACCEPTANCE OF AGREEMENT
Microsoft may provide you, through the Hardware Dev Center and other means, with access to analytic or telemetry data, crash reports, error reporting and other data (“Data”) gathered by Microsoft from Microsoft customers using Windows products; associated information, content and other materials (“Content”); and services to access such Data and Content (“Services”). Your use of Data, Content, and Services (together “Microsoft Materials”) is subject to this Agreement.
By accessing the Microsoft Materials in any way, you agree to and are bound by this Agreement. If you are agreeing to this Agreement on behalf on an entity, such as your employer, you represent that you have the legal authority to bind that entity. If you specify an entity in connection with accessing the Microsoft Materials or agreeing to the Agreement, you will be deemed to agree to this Agreement on behalf of that entity. When agreeing to this Agreement on behalf of an entity, the use of “you” and “your” in this Agreement includes your entity. If you do not agree to all of the terms of this Agreement, do not access or use the Microsoft Materials.
Microsoft may change the terms of this Agreement at any time, and we will tell you when we do. Using the Microsoft Materials after the changes become effective means you agree to the new terms.
2. USE AND LIMITATIONS
2.1 Subject to the terms in this Agreement and any additional terms that may accompany the Microsoft Materials, you may access and use the Microsoft Materials internally, solely to test and improve how your products work with Microsoft products to provide feedback thereon to Microsoft (the “Purpose”).
2.2 For the Microsoft Materials, you will maintain and follow reasonable technical and organizational measures intended to protect customer data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction.
2.3 Any Microsoft Materials that are made available to you are owned by and are the copyrighted work of Microsoft Corporation, its suppliers, and/or its customers, and are protected by copyright laws and international treaty provisions. You may not reverse engineer, decompile or disassemble the Microsoft Materials, or work around any technical limitations in the Microsoft Materials, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this limitation. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, offer to sell or sell the Microsoft Materials, except that you may internally use the Microsoft Materials as described in this Agreement. You may not remove any copyright, trademark or patent notices in or on the Microsoft Materials. In addition, you will not use the Microsoft Materials for any purpose not expressly granted by Microsoft in this Agreement, including, without limitation, promotional, sales, advertising, competitive analysis, or marketing purposes.
2.4 You agree not to provide any Microsoft Materials to third parties (except subject to the terms of this Agreement to a third-party service provider who is assisting you in processing and analyzing such data on your behalf and who is not permitted to use it for any other purpose or disclose it to any other party). You may not aggregate (or permit any third-party to aggregate) the Microsoft Materials with any third-party data. You must not use the Microsoft Materials to attempt to identify or derive information about any end-user or device.
2.5 The Microsoft Materials that you may receive may contain Personal Information. “Personal Information” means any information or data that identifies or could (alone or with other information or data) be used to identify, contact, or locate a person to whom such information pertains, or that is associated with such information or data. Examples of Personal Information may include: name and address, phone number, biometric identifiers, location, contacts, photos, audio and video recordings, documents, SMS, email, or other text communication, screen shots, and in some cases, combined browsing history. You may incidentally access Personal Information within Microsoft Materials only as expressly allowed by this Agreement. You are not entitled to use such Personal Information for any purpose. You will not use Personal Information to contact any individual. You will maintain such Personal Information in strict confidence. You will not share any Personal Information that is collected or possessed by you with any third party for any reason. If you are served with a court order compelling disclosure of any Personal Information, you will oppose the order, will notify Microsoft of such order, and will provide Microsoft the opportunity to intervene before you file any response to the order. You will take reasonable steps to protect Personal Information in your possession from any unauthorized use, access, disclosure, alteration or destruction and must use at minimum security measures that include access controls, encryption or other similar means. You agree to conduct an audit on at least an annual basis to evaluate the security of Personal Information in your possession and to verify that the terms of this Agreement with respect to Personal Information are being followed.
You must store any Personal Information only on a secure server with limited access. Access to such server will be limited to you or, if an entity, your regular employees. You must not store Personal Information for longer than thirty (30) days. Following such 30-day period, you will immediately destroy the Personal Information. Certain types of non-personally identifiable data can be retained beyond thirty (30) days, also on a secure server with limited access. These types of retainable data are limited to the following: counts of error entities (e.g. buckets, events, failures), version ranges, application names, module names, exception codes, problem classes, failure offsets, extracted symbolic information including: call stacks and symbols, loaded and unloaded module lists (including names, versions and linker generated information, timestamps, checksum, size).
3. OWNERSHIP
Microsoft and its customers retain all right, title, and interest in and to the Microsoft Materials. You agree that you acquire no interest in the Microsoft Materials you may receive or use.
4. CONFIDENTIAL INFORMATION
All information contained in or concerning the Microsoft Materials is confidential information of Microsoft, or its suppliers, if it is designated as “confidential”, “proprietary” or “secret” or similar legend or information that a reasonable person knows or reasonably should understand to be confidential. If you have a non-disclosure agreement (“NDA”) with Microsoft, then the terms of that NDA govern your confidentiality obligations with respect to such confidential information. If no NDA exists between you and Microsoft, you agree that for a period of five years from the time you accessed this confidential information, you may not disclose this confidential information to any third party. This restriction will 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 Microsoft enough prior notice to provide a reasonable chance to seek a protective order.
5. MEMBER ACCOUNT, PASSWORD, AND SECURITY
If accessing the Microsoft Materials requires you to open an account, you must complete the registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. You are entirely responsible for maintaining the confidentiality of your password and account. and for all activities that occur under your account. You agree to notify Microsoft immediately of any unauthorized use of your account or any other breach of security. Microsoft will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Microsoft or another party due to someone else using your account or password. You may not use anyone else's account.
6. LIABILITY DISCLAIMER
THE MICROSOFT MATERIALS MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE MICROSOFT MATERIALS AND TO THE INFORMATION THEREIN. MICROSOFT AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE MICROSOFT MATERIALS AT ANY TIME. MICROSOFT AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ACCURACY OF MICROSOFT MATERIALS FOR ANY PURPOSE. ALL MICROSOFT MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, STATUTORY, OR IMPLIED. MICROSOFT AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE MICROSOFT MATERIALS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NONINFRINGEMENT. YOU SPECIFICALLY AGREE THAT MICROSOFT SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA AS A RESULT OF YOUR USE OF THE SERVICES, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED AS A RESULT OF YOUR USE OF THE SERVICES, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. IN NO EVENT SHALL MICROSOFT AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICES, WITH THE DELAY OR INABILITY TO USE THE SERVICES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY MICROSOFT MATERIALS OBTAINED THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE MICROSOFT MATERIALS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MICROSOFT OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE MICROSOFT MATERIALS, OR WITH ANY PART OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES AND OTHER MICROSOFT MATERIALS.
7. INDEMNIFICATION
You shall indemnify, defend and hold Microsoft and its affiliates, and its and their directors, officers, and employees, contractors, agents, and third party suppliers harmless against any claims, actions, demands, proceedings, damages, costs and liabilities of any kind; (including, without limitation, reasonable attorneys’ fees and legal expenses) (collectively, “Claims”) arising out of: (a) your use or misuse of the Microsoft Materials, (b) your violation of the rights of any third party, (d) your breach of any of the representations, warranties, and covenants made herein.
The indemnified party will: (1) provide the indemnifying party with reasonably prompt notice of Claims; (2) permit the indemnifying party through mutually acceptable counsel to answer and defend Claims; and, and (3) provide the indemnifying party with reasonable information and assistance to help the indemnifying party defend Claims at the indemnifying party’s expense. Any indemnified party may employ separate counsel and participate in the defense of any Claim at its own expense.
8. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Microsoft Materials, you will not use the Microsoft Materials (including without limitation the Data) for any purpose that is unlawful or prohibited by this Agreement. You may not use the Agreement in any manner that could damage, disable, overburden, or impair any Microsoft server, or the network(s) connected to any Microsoft server, or interfere with any other party’s use and enjoyment of any Microsoft Materials. You may not attempt to gain unauthorized access to any Microsoft Materials, other accounts, computer systems or networks connected to any Microsoft server or to any of the Services, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services.
9. FEEDBACK
Microsoft does not claim ownership of any comments, suggestions, or feedback you may provide to Microsoft in connection with the Microsoft Materials (“Feedback”). However, by providing Feedback to Microsoft, you are granting Microsoft, its affiliated companies and necessary sublicensees, a worldwide, royalty-free right and license to use, copy, modify, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, reformat, license, offer to sell, and sell, rent, lease, or lend your Feedback, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise; and the right to sublicense such rights to any third party. Feedback, even if designated as confidential by you, shall not, absent a separate written agreement, create any confidentiality obligation for or upon Microsoft. You will not give Feedback that is subject to license terms that seek to require any Microsoft product, technology, service or documentation incorporating or derived from such Feedback, or any Microsoft intellectual property, to be licensed or otherwise shared with any third party. No compensation will be paid with respect to the use of your Feedback, as provided herein. Microsoft is under no obligation to use any Feedback you may provide.
- TERMINATION AND SURVIVAL
10.1 Termination. You may terminate this Agreement at any time, for any reason whatsoever, with notice to Microsoft. Microsoft may terminate this Agreement or your access to any or all Microsoft Materials at any time, without notice, for any reason whatsoever. Upon termination or expiration, you must immediately stop using the Microsoft Materials. You will do one of the following within ten (10) days of termination or expiration and at Microsoft’s discretion:
(1) Return all copies of Microsoft Confidential Information and Microsoft Materials; or
(2) Destroy all such Microsoft Confidential Information and Microsoft Materials, including copies, and, upon request, give Microsoft a certificate of destruction signed by an officer or other responsible executive of your company.
10.2 Survival. Sections of this Agreement that, by their terms, require performance after the termination or expiration of this Agreement will survive.
11. GENERAL
11.1 Choice of Law and Jurisdiction. The laws of the State of Washington, USA govern this Agreement. If federal jurisdiction exists, you and Microsoft each consent to exclusive jurisdiction and venue in the federal courts in King County, Washington, USA. If not, you and Microsoft each consent to exclusive jurisdiction and venue in the Superior Court of King County, Washington, USA.
11.2 Attorney Fees. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs and other expenses.
11.2 Communication. Microsoft may communicate with you via the email address, phone number, or physical address we have on record for you or by posting updates to the Collaborate Website or another designated website.
11.3. Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Microsoft because of this Agreement or use of the Microsoft Materials.
11.4 Enforceability. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
11.5 Reservation of Rights. Microsoft reserves all rights not expressly granted herein.
11.6 Conflicts. If there is a direct conflict between this Agreement and any other agreement or terms that may accompany the Microsoft Materials, the other terms of agreement will control, but only to the extent of that conflict.
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