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Online Services Supplemental Terms and Conditions

Updated: January 15, 2013

Applies To: System Center Global Service Monitor

  1. Definitions

    Capitalized terms used, but not defined herein, shall have the meanings given them in the Master Agreement and/or Agreement. The following definitions replace or supplement the definitions in the Agreement, as appropriate:

    “Customer Data” means all data, including all text, sound, software, or image files that are provided to Microsoft by, or on behalf of, Customer through Customer’s use of the Online Services or in connection with Services.

    “Online Services” means the Microsoft-hosted services identified in the Online Services section of the Product List.

    “Product” means all software, Online Services and other web-based services, including pre-release or beta versions, identified on the Product List.

    “Services” means all support, consulting and other services or advice, including any resulting deliverables provided to Customer under the Agreement. Services do not include Online Services.

    “Service Level Agreement” means the document specifying the standards Microsoft agrees to adhere to and by which it measures the level of service for an Online Service.

  2. Applicability of Supplemental Terms.

    These Supplemental Terms apply only to Customer’s purchase and use of Online Services and Services. Products other than Online Services remain subject to the terms of the Master Agreement, the Agreement, and any terms referenced therein. In the case of any conflict between these Supplemental Terms and the terms and conditions of the Master Agreement or Agreement that are not expressly resolved by their terms, these Supplemental Terms control.

  3. Limited warranty for Online Services.

    Microsoft warrants that the Online Services will perform in accordance with the applicable Service Level Agreement. This limited warranty is for the duration of Customer’s use of the Online Service, subject to the notice requirements in the applicable Service Level Agreement.

    If Microsoft fails to meet this limited warranty and Customer notifies Microsoft within the warranty term, then Microsoft will provide the remedies identified in the Service Level Agreement for the affected Online Service. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.

    This limited warranty is subject to the following limitations:

    1. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law last for one year from the start of the limited warranty;

    2. the limited warranty does not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement or the Product Use Rights, or resulting from events beyond Microsoft’s reasonable control;

    3. the limited warranty does not apply to components of Products that Customer is permitted to redistribute;

    4. the limited warranty does not apply to free, trial, pre-release, or beta versions of the Online Services; and

    5. the limited warranty does not apply to problems caused by the failure to meet minimum system requirements.

    OTHER THAN THIS LIMITED WARRANTY, MICROSOFT PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. MICROSOFT DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.

  4. Privacy and security.

    1. Microsoft and Customer will each comply with all applicable laws and regulations (including applicable security breach notification law). However, Microsoft is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not also generally applicable to information technology services providers. Customer consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of the Agreement, any Online Services subscription or enrollment and any Statement of Services or Supplemental Agreement, including these Supplemental Terms.

    2. Customer may choose to provide personal information to Microsoft on behalf of third parties (including Customer’s contacts, resellers, distributors, administrators, and employees) in connection with the use of the Online Services or as part of the Agreement. Customer will obtain all required consents from third parties under applicable privacy and data protection laws before providing personal information to Microsoft.

    3. The personal information Customer provides in connection with the Agreement or the use of the Online Services will be processed according to the privacy statement available at https://www.microsoft.com/licensing/servicecenter(see footer), except that Product-specific privacy statements and additional privacy and security details related to specific Online Services are in the Product Use Rights. Personal data collected through the Online Services or Services may be transferred, stored and processed in the United States or any other country in which Microsoft or its service providers maintain facilities. By using the Online Services or Services, Customer consents to the foregoing. Microsoft abides by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union, the European Economic Area, and Switzerland.

  5. Non-Microsoft software or technology.

    1. Customer is solely responsible for any non-Microsoft software or technology that it installs or uses with the Online Services, Fixes or Services Deliverables. Microsoft is not a party to and is not bound by any terms governing Customer’s use of non-Microsoft software or technology.

    2. If Customer installs or uses any non-Microsoft software or technology with the Online Services, Fixes or Services Deliverables, then Customer, not Microsoft, directs and controls the installation and use of such software or technology through Customer’s use of application programming interfaces or other technical means that are part of the Online Services. Microsoft will not run or make any copies of such non-Microsoft software or technology outside of its relationship with Customer.

    3. If Customer installs or uses any non-Microsoft software or technology with the Online Services, Fixes or Services Deliverables, it may not do so in any way that would subject Microsoft’s intellectual property or technology to obligations beyond those included in the Agreement or these Supplemental Terms.

  6. Customer’s agreement to protect.

    Customer will defend Microsoft against any claims made by an unaffiliated third party that:

    1. any Customer Data or non-Microsoft software Microsoft hosts on Customer’s behalf infringes the third party’s patent, copyright, or trademark or makes unlawful use of its Trade Secret; or

    2. arise from violation of the terms of the Acceptable Use Policy, which is described in the Product Use Rights.

    Customer must pay the amount of any resulting adverse final judgment (or settlement to which Customer consents). This section provides Microsoft’s exclusive remedy for these claims.

    Microsoft must notify Customer promptly in writing of a claim subject to this section. Microsoft must (1) give Customer sole control over the defense or settlement of such claim; and (2) provide reasonable assistance in defending the claim. Customer will reimburse Microsoft for reasonable out of pocket expenses that it incurs in providing assistance.

  7. Limitation on liability.

    To the extent permitted by applicable law, the liability of each party, its Affiliates, and its Contractors arising under this agreement is limited to direct damages up to (1) for Services, the amount Customer was required to pay for the Services giving rise to that liability and (2) for Online Services, the amount Customer paid for the Online Service giving rise to that liability during the prior 12 months. In the case of Online Services or Services provided free of charge, or code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to U.S. $5,000. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:

    1. Microsoft’s obligations under the section of the Master Agreement titled “Defense of infringement, misappropriation, and third party claims” or Customer’s obligations under the section of these Supplemental Terms titled “Customer’s agreement to protect”;

    2. liabilities arising out of any breach by either party of its obligations under the section of the Master Agreement entitled “Confidentiality”, except that Microsoft’s liability arising out of or in relation to Customer Data shall in all cases be limited to the amount Customer paid for the Online Service giving rise to that liability during the prior 12 months, or for any Services giving rise to the liability; and

    3. violation by either party of the other party’s intellectual property rights.

    TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES OR CONTRACTORS, WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION ARISING IN CONNECTION WITH THE AGREEMENT OR THESE SUPPLEMENTAL TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS (EXCEPT TO THE EXTENT THAT SUCH VIOLATION RELATES TO CUSTOMER DATA), THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR MICROSOFT’S OBLIGATIONS IN THE SECTION OF THE MASTER AGREEMENT TITLED “DEFENSE OF INFRINGEMENT, MISAPPROPRIATION, AND THIRD PARTY CLAIMS” OR CUSTOMER’S OBLIGATIONS IN THE SECTION OF THESE SUPPLEMENTAL TERMS TITLED “CUSTOMER’S AGREEMENT TO PROTECT.”

  8. Subcontractors.

    Microsoft may use Contractors to support Online Services and perform Services. Microsoft will be responsible for their performance subject to the terms of this Agreement.

 
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