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Change history for Microsoft Publisher Agreement version 8.0 - July 2023 update

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We have updated the Microsoft Publisher Agreement to clarify some of your rights and obligations and to include language to cover new features offered in the Commercial Marketplace. Where changes don’t substantively affect either your or Microsoft’s rights or obligations, we haven’t listed them below.

To review all updates in the July 2023 update of the agreement, read the full Microsoft Publisher Agreement. To review the previous version of the agreement, see Microsoft Publisher Agreement version 8.0 CORRECTED October 2022.

We also used this as an opportunity to correct two publication errors where content from our Microsoft Publisher Agreement version 8.0 October 2022 update did not get reflected in the corrected version. These include restoring our longstanding definition of Commercial Marketplace, and adding back a reference to Biometric Data in Section 4.

Changes to document version 8.0 – July 2023

The following sections of the Agreement were updated in document version 8.0-July 2023 Update.

Section 3 LICENSES

To promote your Offering and the Commercial Marketplace, we clarified our rights to use your entity name and Offer Assets in connection with our promotion of the availability of your Offers via the Commercial Marketplace:

  • Section 3(c) Marketing Rights: You grant us the right to use your entity name and Offer Assets to promote your Offerings and the Commercial Marketplace through our websites, products, service, and events, including those of our affiliates.

Section 7 CONFIDENTIALITY, PRIVACY, SECURITY AND DATA PROTECTION

We simplified the security obligation language:

  • Section 7(d) Security: We condensed the security obligation language and clarified that if you have a security incident that impacts your Offer or your environment that could impact Customers, you will notify our support team.

Section 9 DISCLAIMER, LIMITATION OF LIABILITY, AND DEFENSE OF CLAIMS

We limited your indemnity obligations for tax claims by clarifying that you will not be required to indemnify us certain third-party claims:

  • Section 9(d) Indemnity: If a tax authority makes a claim against you that alleges a nonpayment, underpayment, or failure to collect or remit any applicable sales, use, goods and services, value-added or other similar tax (including any associated penalties and interest) due to an error or omission by Microsoft, you will not required to indemnify Microsoft for such error or omission.

Section 10 TERM AND TERMINATION

We distinguished how we bill for usage during the Wind Down Period with respect to where your Offer is deployed:

  • Section 10(c) Wind Down Period: We clarified that if your Offer is deployed in Publisher’s cloud environments, we will continue to bill for usage during the Wind Down Period. If your Offer is deployed in Customer’s cloud environments, we will continue to bill for any Customer usage after expiration of the Wind Down Period.

ADDENDA

ADDENDUM B: TERMS APPLICABLE TO SPECIFIC GO TO MARKET CHANNELS

We added new terms to support the launch of Multi-Party Private Offers (“MPO”). These new terms only apply to ISVs and Authorized Partners that use a billing account based in the United States, and the terms clarify the roles between Microsoft and the ISV and Authorized Partners. Under this new MPO program, ISVs may designate an Authorized Partner to resell ISV’s private Offers to Customers in the Commercial Marketplace. A few highlights regarding our new MPO program.

  • Section 1(d) Relationship of the Parties: ISV and the Authorized Partner are each responsible for any terms that govern their relationship outside of Addendum B and that all such terms must be consistent with the Addendum B terms.

  • Section 1(e) ISV Role: If an ISV designates an Authorized Partner to sell ISV’s Offer, the ISV will allow the Authorized Partner to publish and sell the Offers on the Commercial Marketplace (at the Authorized Partner’s determined price), and the ISV will sell the Offer to the Authorized Partner at the ISV’s designated price.

  • Section 1(f) Authorized Partner Role: If an Authorized Partner agrees to sell an ISV’s Offer, it must purchase the Offer from the ISV at the agreed-to price and can only sell that Offer to Customers on the Commercial Marketplace. Importantly, if a Customer purchases an Offer from an Authorized Partner, the billing relationship is between the Authorized Partner and the Customer, and the transaction does not create a billing relationship between the Customer and the ISV.

  • Section 1(g) Resale Transactions: The ISV sale of an Offer to an Authorized Partner is treated as a sale to a reseller and a resale between the Authorized Partner and a Customer. Microsoft’s role is that of an agent or commissionaire for such transactions.

  • Section 1(h) Refund, Reconciliation, and Offset and Section 1(i) Taxes: Section 5, which governs refunds, reconciliations, offsets, and taxes, among other things, also governs the transactions for MPOs, except we will not collect taxes covered by a valid exemption certificate provided by an Authorized Partner, and ISVs and Authorized Partners are responsible for their own taxes associated with the sale of an Offer to an Authorized Partner.

  • Section 1(j) Customer Information: We may share Customer contact information obtained by the Authorized Partners with the ISV. Such information sharing is subject to Section 7 of the Publisher Agreement.

  • Section 1(k) Support: Unless otherwise agreed between ISV and its Authorized Partner, Authorized Partner is required to provide ISV customer support contacts to Customers, and ISV must provide technical support contacts.

  • Section 1(l) Termination of Reseller Relationship: The ISV and Authorized Partner will determine their respective termination rights via the Resale Terms, and we will not validate those termination rights. If we receive a termination notice from either party, we will terminate the private Offer only if we receive mutual confirmation from both parties of their intent to terminate.

Because we added a new reseller motion with MPO, we took the opportunity to better distinguish and describe the role and responsibilities of our other reseller motions. Section 2 outlines the responsibilities of the ISV and Microsoft with respect to Microsoft CSP Resellers:

  • Section 2(a) Microsoft CSP Resellers: We will act as your agent or commissionaire for a sale to Microsoft CSP Resellers and will collect fees on the Publisher Net Receipts for those sales.

  • Section 2(b) Limiting Countries/Territories: If you do not want to allow an Offer to be resold by a Microsoft CSP Reseller in a particular country/territory, you much make that Offer unavailable in that location. If you remove an Offer from that location for indirect purchasers, it will also remove that Offer for direct sales in that country.

  • Section 2(d) Support: We clarified that Microsoft CSP Resellers are not responsible for providing technical support and service level commitments to Customers.

Section 3 includes new terms regarding Offers directed to the China Marketplace, which will be available to manage via Partner Center and how that marketplace is managed by 21Vianet:

  • Section 3(d) Offers Directed to China Marketplace: If you make an Offer available in China, you will be using the marketplace owned and operated by our partner, 21Vianet, and you will be required to enter into a separate agreement with 21 Vianet. That agreement will control if there is a conflict between its terms and this Addendum, though the Addendum will control with respect to the support we provide through Partner Center, including any payments we make to you on 21Vianet’s behalf. For the 21Vianet Marketplace, the personal information you provide through Partner Center will be used to help administer the 21Vianet marketplace by 21Vianet and by us on 21Vianet’s behalf. You are required to obtain all consents (or rely on an applicable legal basis) for the related individuals under appliable data protection laws. 21Vianet and Microsoft may transfer such information to third parties outside of China for the purposes noted above.

ADDENDUM D: ISV SUCCESS PROGRAM BUSINESS APPLICATIONS ADDENDUM

Note

On June 30, 2023, we removed Addendum D. Participants in the ISV Success Program for Business Applications will continue to accept a separate agreement to participate in the program.

This addendum streamlines a few program changes to simplify the contractual arrangements between you and Microsoft. We also removed the terms related to the Commercial Marketplace Benefits, which are now part of the more expansive ISV Success Program, which are program terms governed by the Microsoft Cloud Partner Program Agreement. The new terms are based off a formerly separate agreement, the Business Applications Addendum, which is being retired and will now be incorporated into the Publisher Agreement in Addendum D. Addendum D allows you to elect to participate in the ISV Success Program for Business Applications if your Offer is a Qualified Offer and describes the obligations of both you and Microsoft. The ISV Success Program for Business Applications is available globally, except in China:

  • Section 3(a) Revenue Sharing Fee: For each Paid Eligible Sale, you will pay us a Revenue Sharing Fee.

  • Section 3(b) Additional Discounts and Adjustments: You will pay a pro-rated Revenue Sharing Fee if a Paid Eligible Sale includes a Customer contract term that began before you enrolled in the ISV Connect Program. If the Solution Value or Customer Subscription Term changes due to a modification of the applicable agreement between you and the Customer, you must report those updated amounts to us using the Partner Center deal registration portal, and we will recalculate the fees in connection with such Paid Eligible Sale accordingly.

  • Section 3(c) Invoicing and Payments: We will send you an invoice for Revenue Sharing Fees within 30 days of the initial deal registration and thereafter in advance of each quarterly period during the Customer Subscription Term, though the fee may be due under earlier under certain circumstances. This Section 3(c) includes additional details regarding the invoicing mechanics and related payment requirements.

  • Section 4(a) Reporting: You are required to report Paid Eligible Sales made outside of the Commercial Marketplace within 30 days using the Partner Center’s deal registration portal. You must also report Paid Eligible Sales that result from a “win” on opportunities shared between you and us. Reporting co-sell deals does not trigger additional Revenue Sharing Fees. The Revenue Sharing Fee is based on when the sale was signed, not when it was reported (even if reported late).

  • Section 4(b) Recordkeeping: You will maintain complete and accurate records during the period you participate in the ISV Success Program and for a period of three years after your participation ends.

  • Section 4(c) Audit: We may conduct reasonable audits for the prior three years at our sole cost and expense. However, you will reimburse us for all costs and expenses of such audit if we find you violated any applicable laws or regulations, or if there is a discrepancy of more than 10% during the period audited.

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