Microsoft Publisher Agreement version 8.0 May 2021
Version: 8.0
Effective date: May 15, 2021 Review our change log.
Thank you for your interest in publishing an offer with Microsoft. This Publisher Agreement (“Agreement”) describes the relationship between you (“Publisher,” “you,” or “your”) and Microsoft Corporation (“Microsoft,” “we,” “us” or “our”) and governs your listing of Products on our Commercial Marketplace and using Partner Center for such purposes.
By submitting a Product or Product Assets for publication in the Commercial Marketplace or using features of Partner Center related to publication on the Commercial Marketplace, you agree to the terms of this Agreement. Microsoft may update this Agreement at any time and will notify you of such changes. By continuing to use your Publisher Account or Listing your Products in the Commercial Marketplace after the changes become effective, you agree to the new terms. If you do not agree to the new terms, you must remove your Products from the Commercial Marketplace and close your Publisher Account.
This Agreement contains terms applicable to the Commercial Marketplace, and the Addenda contain terms for specific Products and programs. The Addenda may contain additional or different terms from the body of this Agreement, and in such case, the Addenda will control.
The Agreement consists of:
- the Terms and Conditions;
- Addendum A – Terms and Conditions Applicable to Specific Categories of Product;
- Addendum B – Terms and Conditions Applicable to Distribution of Products through Microsoft indirect channels and in Reseller Countries;
- Addendum C – Terms and Conditions applicable to the Office Store, and Microsoft 365 Certification Program;
- Addendum D – Commercial Benefits Program;
- the provisions in any documents or online resources referenced in other parts of this Agreement, including Documentation.
TERMS AND CONDITIONS
1. PUBLISHER ACCOUNT
To submit Products to the Commercial Marketplace, you must open a Publisher Account through the Partner Center and provide all information required by Microsoft to approve you as a Publisher. Microsoft may use your contact information provided for the Microsoft Partner Network to send you information regarding announcements, programs, updates, and the like for the Microsoft Partner Network and your activities with your Publisher Account. You agree that Microsoft may display in the Commercial Marketplace the contact information (including email address) that you provide for Customer support and transactional purposes. You are responsible for all activity that takes place with your Publisher Account. If you fail to keep your Publisher Account in good standing, Microsoft may revoke your Publisher Account, remove your Products from the Commercial Marketplace, delete Product ratings and reviews, retain associated fees (if any), and pursue any other remedies available to Microsoft.
2. SUBMISSION, CERTIFICATION, AND DISTRIBUTION OF PRODUCTS
(a) Appointment of Microsoft. Microsoft provides the technology and services enabling the Commercial Marketplace (including Customer purchases of Products as described in Section 5). Except as otherwise provided in Section 5(a), you appoint Microsoft as your agent or commissionaire, as applicable, for these purposes. You acknowledge that you, not Microsoft, are the distributor of Products acquired through the Commercial Marketplace.
(b) Submission. You must submit to Microsoft each Product that you wish to make available through the Commercial Marketplace, including any Product Assets and updates. You are solely responsible and liable for the Product and Product Assets, including all delivery and support. Microsoft may retain copies of the Product Assets and the materials you submit for your Listing. Microsoft will not return them, so you must maintain your own backup copies.
(c) Updates to Product. You may submit updates to Products available in the Commercial Marketplace. Those updates are subject to the requirements of this Agreement.
(d) Certification. Each Product (including any updates) is subject to Certification before such Product is made available in the Commercial Marketplace. Certification and post-publication assurances, described below, may include Microsoft scanning submitted Products for identification of security vulnerabilities. Microsoft’s Certification of a Product does not constitute any representation or acknowledgment by Microsoft that the Product complies with such requirements, nor does it constitute any acceptance by Microsoft of any responsibility or liability for the Product.
(e) Post Publication Assurances. Once published in a Commercial Marketplace, Microsoft may periodically test and evaluate your Product to verify that it continues to comply with this Agreement and Documentation. Microsoft may also modify your Product description solely to correct obvious spelling, grammatical or typographical errors.
(f) Removing a Product Listing. If you wish to remove your Product, you may do so via your Publisher Account in the Microsoft Partner Center. Within a reasonable time, Microsoft will remove the Product from the applicable Commercial Marketplace and cease making the affected Product available through the Commercial Marketplace.
(g) Microsoft Removal and Disablement Policies. Microsoft may remove or suspend the availability of any Product from the Commercial Marketplace for: (i) your breach of this Agreement (including Documentation); (ii) your termination of this Agreement or of the license grants associated with a Product; (iii) an assertion or claim that your Product infringes the intellectual property rights of a third party in accordance with our Notice and Takedown process for services; (iv) complaint(s) about the content or quality of your Product; or (v) an allegation of or your violation of any applicable law, regulation, or regulatory guideline. Microsoft also may disable your Product if: (A) Microsoft determines that the Product causes harm to Customers or their devices, third parties (including any Covered Parties) or any network, (B) pursuant to a request or instruction from a Customer, or (C) to comply with any judicial order, or government law, regulation, or order.
(h) Infringement Claims. If you believe another Product violates your rights, you may submit a claim to Microsoft in accordance with our Notice and Takedown process for services. If Microsoft refers a claim to you, you will promptly respond and comply with any requirements in the Notice and Takedown process.
(i) Product Placement and Promotion. Microsoft reserves the right, in its sole discretion, to make (or to designate Affiliates or third parties to make) all decisions regarding placement or promotion of Products anywhere in the Commercial Marketplace, except as may be otherwise agreed between you and Microsoft.
(j) Product Rankings and Ratings. The Commercial Marketplace may allow Customers to comment on and rate Products and display such comments and ratings on your Product, including comments and ratings sourced from third parties. Microsoft may make rankings, ratings, or comments publicly available. Microsoft may use those ratings and other data to determine the placement or marketing of Products in the Commercial Marketplace. You may not attempt to manipulate rankings, ratings or comments for your Product or any other Product. Microsoft may remove any rankings, ratings, or comments at its sole discretion and for any reason.
(k) Modification or Discontinuance. The Commercial Marketplace and the Partner Center are the property of Microsoft. Microsoft may, in its sole discretion, change or discontinue the Commercial Marketplace or the Partner Center at any time.
3. LICENSES
(a) Grant of Rights to Microsoft. You do not transfer ownership of any Product to Microsoft by submitting it for publication. By submitting a Product and Product Assets for publication, except for third party rights and material under open source licenses described in Section 3(b), you directly grant to Microsoft, the worldwide, non-exclusive right to: host, install, reproduce, publicly perform and display via any digital transmission technology, your Product and Product Assets, solely as necessary to operate the Commercial Marketplace, display and manage your Listings, perform Certification, and make available your Listing to Customers.
(b) Third Party Rights/Open Source Licenses. Your Product and the Product Assets must not infringe or misappropriate any intellectual property or personal right of any third party. If any portion of your Product’s code is licensed from a third party or under any open source license, you are solely responsible for compliance with those license terms and conditions and ensuring that Microsoft, in its capacity as your agent or commissionaire, has the necessary rights to perform its obligations to you under this Agreement. You are, at your sole cost and expense, responsible for securing, reporting, and maintaining all necessary rights, clearances and consents and paying all licensing fees (including applicable public performance license fees or other consideration associated with providing music or video (and all content embodied therein) in and through your Product or Product Assets), and for undertaking all related reporting obligations.
(c) Marketing Rights. You grant Microsoft, its agents, contractors, licensees, marketing partners, and Covered Parties the right to use, reproduce, display, publicly perform and publish your entity name and Product Assets, in connection with the marketing of the Product through the Commercial Marketplace and Microsoft and Microsoft Affiliate websites, products and services related to the Commercial Marketplace. Nothing in this Agreement precludes Microsoft from using your Product or Product Assets as permitted by law (e.g., fair use under applicable copyright law or "referential" use under trademark law).
(d) Product License to Customer. You, not Microsoft, will license or grant any necessary rights to your Products and any Product Assets to Customers. You may provide your own end user license agreement or other applicable terms, (subject to the requirements herein, including any privacy policy required under the Agreement), or you may elect to govern Customers’ use of your Product with the Microsoft Standard Contract (available here). If you do not provide your own license agreement (or, if you elect to use the Standard Contract), then the Standard Contract terms will apply between you and Customers. Any licenses and grants are between you and Customers and will not create any obligations or responsibilities of any kind for Microsoft. You acknowledge that Microsoft grants no right or license to your Products through the operation of the Commercial Marketplace or through enabling you to provide Products through the Commercial Marketplace.
(e) License to Microsoft Marks. While your Product is Listed in the Commercial Marketplace, Microsoft grants you a worldwide, nonexclusive, nontransferable, non-sublicensable, royalty-free, revocable license to use the Microsoft Marks in connection with advertising for your Product, solely as described in the Microsoft Marketing Guidelines and in compliance with the General Microsoft Trademark and Brand Guidelines. You will correct any misuse of Microsoft Marks upon Microsoft’s reasonable notice, and will cease using Microsoft Marks if you fail to correct such misuse. Microsoft reserves all rights not expressly granted herein. Microsoft is the sole owner of the Microsoft Marks and associated goodwill, and the sole beneficiary of the goodwill associated with your use of the Microsoft Marks. You will not acquire any right, title, or interest in the Microsoft Marks because of your use of the Microsoft Marks. You hereby assign and will assign in the future any rights you may acquire in the Microsoft Marks as a result of your use of the Microsoft Marks under this license, along with the associated goodwill. You will reasonably assist Microsoft at Microsoft's expense in protecting the Microsoft Marks. Microsoft will determine, in its sole discretion, whether to take legal action to enforce or defend its rights in the Microsoft Marks and will control any legal action concerning the Microsoft Marks.
4. PRODUCT REQUIREMENTS
Each Product you submit to Microsoft for publication and distribution through the Commercial Marketplace must meet the following requirements:
(a) General Requirements. The Product must comply with this Agreement and the Documentation.
(b) Local Law. Your Product and your marketing of the Product must comply with the applicable laws of each territory or country in which you elect to make the Product and Product Assets available. This includes applicable: (i) Data Protection Law; (ii) telecommunications laws; (iii) content ratings regulations; (iv) consumer protection and marketing laws, including laws that prohibit direct exhortations to children to buy advertised products; (v) export control laws; (vi) tax laws, regardless of the origin of your Product; (vii) medical device regulations; and (viii) financial regulations. If you are required to make any disclosures to consumers prior to sale or download of the Product, you must provide those in the Product description field (unless they are provided elsewhere your Listing). The Commercial Marketplace’ product description pages may include your full contact information and information about in-Product purchases available in a Product. You must make such notices sufficiently prominent as is required by local law. You must disclose to Microsoft any controlled technology employed, used or supported by your Product that may impose any legal obligations or requirements on Microsoft. You must inform Microsoft of such legal obligations and requirements, and take any action if necessary for Microsoft to comply with its legal obligations. You may not use the Commercial Marketplace or any services or tools made available for the development of Products for, or to permit others to carry out, any illegal activity or breach of contract.
(c) Support. Microsoft is not responsible for providing support for your Products. You must provide to Microsoft current technical and billing support contacts via e-mail and phone for when Microsoft receives technical or billing questions from Customers about your Product. You will use best efforts to respond to any inquiry received by Microsoft about your Product. You will ensure that any support options described in your listing information remain available to Customers for as long as the relevant Product is available in the Commercial Marketplace and/or to Customers.
5. TERMS APPLICABLE TO PAID TRANSACTIONS THROUGH THE COMMERCIAL MARKETPLACE
(a) Appointment of Microsoft.
(i) You appoint Microsoft as your agent or commissionaire, as applicable, for the purpose of facilitating Customer purchases through the Commercial Marketplace. In this role, you acknowledge that: (A) Microsoft will receive on your behalf amounts that a Customer pays when they acquire any of your Products through the Commercial Marketplace; (B) Microsoft’s services to you include the processing of purchases, returns, and chargebacks for you arising out of the purchase by Customers of your Products; and (C) Microsoft will make payments to you in accordance with this Section 5. You grant Microsoft the right to appoint any Covered Parties (solely as required to administer value-added tax (“VAT”) obligations and for collection and payout of applicable fees made under this Agreement) as sub-agents and also grant any Covered Party appointed by Microsoft the right to appoint other Covered Parties as sub-agents.
(ii) For any transactions that involve a purchase of your Product by an Australian Customer (as determined by Microsoft), you understand and agree that Microsoft has assigned its right to act as your agent or commissionaire (as the case may be) solely to the extent required to allow Microsoft to manage the local tax collection requirements in Australia for such purchase, to Microsoft Regional Sales Corporation, located at 438B Alexandra Road #04-09/12 Block B, Alexandra Technopark Singapore 119968 (“MRS”), or Microsoft Pty Ltd, located at 1 Epping Road, North Ryde, New South Wales, Australia 2113 (“MPL”). You and MRS or MPL (as the case may be) agree for purposes of Section 84-60 of A New Tax System (Goods and Services Tax) Act 1999 (the “AU GST Act”): (A) Section 84-55 of the AU GST Act applies to sales of your Products made available by you through the Commercial Marketplace as if such sales were an inbound intangible consumer supply; and (B) for the purposes of the AU GST Act, MRS or MPL (as the case may be) is treated as the supplier of and as making the supply for consideration for which it was made.
(iii) For any transactions that involve a purchase of your Product by a New Zealand Customer (as determined by Microsoft), where Microsoft has assigned its right to act as your agent or commissionaire (as the case may be) solely to the extent required to allow Microsoft to manage the local tax collection requirements in New Zealand for such purchase, to Microsoft New Zealand Limited, located at Level 5, 22 Viaduct Harbour Avenue, PO Box 8070, Symonds Street, Auckland 1150, New Zealand (“MSNZ”), you understand and agree to such assignment. You and MSNZ agree: (A) for the purposes of Section 60(1AB) of the Goods and Services Tax Act 1985 (“NZ GST Act”) MSNZ, and not you, are treated as making the supply of your Product to Customers located in New Zealand in the course and furtherance of a taxable activity carried on by you; and (B) for the purposes of Section 60(1B) of the NZ GST Act that the supply of your Product to New Zealand Customers is treated for the purposes of the NZ GST Act as two separate supplies, being: (1) a supply of goods and services from you to MSNZ; and (2) a supply of goods and services from MSNZ to the Customers, treating MSNZ as if it were the principal for the purpose of the supply.
(iv) Microsoft acts as a reseller, rather than your agent, in making your Product(s) available in the Commercial Marketplace in the country(ies) and to the extent listed at: Tax details for commercial marketplace publishers, and as further described in Section 2 of Addendum B, entitled Products Made Available in Microsoft Reseller Countries.
(b) Product Pricing. When you submit a Product for publication, you will designate the price (if any) to be charged to Customers for use of your Product. The publishing portal may direct you to designate prices for different Product SKUs, geographies, currencies, or other aspects of your Product. Microsoft will convert the prices from the currency a Customer pays with to your elected payment currency at the exchange rate we make available to you as described in Geographic Availability and Currency Support. If you wish to set a different price for a market from Microsoft’s exchange rate price, you may change the price for that market. Microsoft may change its supported currencies or the default currencies for certain markets after providing you 30 days’ notice of any such changes.
(c) Publisher Net Revenue. Amounts payable to you will be based on the Publisher Net Receipts minus the applicable Store Service Fee. The applicable Store Service Fee, which will be charged by Microsoft, or in Microsoft’s sole discretion, by a Microsoft Affiliate, is provided at Commercial Marketplace Fees. Microsoft will provide no less than 90 days’ notice prior to an increase to the Store Service Fee. The total sum payable hereunder is referred to as “Publisher Net Revenue”. For clarity, Publisher Net Revenue only applies to Products purchased directly through the Commercial Marketplace and excludes licenses purchased outside of the Commercial Marketplace. We will include a transaction report along with payments made to you hereunder that reflects the calculation of Publisher Net Revenues and the number of purchased Products used or downloaded by Customers during the relevant payment period, as applicable.
(d) Payment to Publishers. We will pay you applicable Publisher Net Revenues within each payment period, as specified at Payout Schedules and Processes.
(e) Payment Processing. Microsoft will pay you Publisher Net Revenues in accordance with Microsoft's then-current payment policies and in the manner you indicate during the Publisher Account setup, which may include checks payable to you and sent via U.S. mail or ACH electronic payment to a financial institution that you designate. You must provide Microsoft (or our third-party payment processor) with all financial, tax, and banking information requested so that we can pay you under this Agreement. Your failure to keep such information current and accurate may result in Microsoft's removal of your Product from the Commercial Marketplace and forfeiture of amounts owed to you under this Agreement. A Customer will be deemed to have paid in full for your Product when Microsoft receives payment from the Customer, and any failure by Microsoft to remit the amounts owing to you will not affect a Customer's rights to the Product. Microsoft is not responsible for delay or misapplication of payment because of incorrect or incomplete information supplied by you or a bank or for failure of a bank to credit your account. If you are outside of the United States of America, Microsoft may remit payment to you in the local currency of your address for payment, using Microsoft's then-current conversion rates for United States Dollars (“USD”). The amount you receive will depend on the rates and fees imposed by your financial institution and on any applicable tax withholding requirements, and will be inclusive of any sales, use, goods and services, value-added, or similar taxes that may be chargeable by you to Microsoft.
(f) Refund, Reconciliation, and Offset. You are responsible for all taxes, costs and expenses for returns, and chargebacks of your Product, including the full refund and chargeback amounts paid or credited to Customers. Refunds and chargebacks processed after you receive the payments will be debited against your account. If Microsoft is unable to collect payments from Customer, Microsoft may offset any amounts owed to Microsoft (including the refund and chargeback costs described in this paragraph) against amounts Microsoft owes you. You grant Microsoft a right to provide refunds to Customers in accordance with Microsoft's prevailing policies and applicable laws from time to time. For clarity, if Microsoft provides you payment of the Publisher Net Revenue in advance of receiving such payment from the Customer, and Customer does not pay Microsoft, Microsoft may offset any such amounts paid and request a refund of any such prepaid amounts from you.
(g) Payments Post Removal or Suspension. Microsoft will pay you the amounts owed (if any) that accrued before removal or suspension of your Product unless your Product is removed or suspended in accordance with Section 2(g) of this Agreement. Microsoft's termination and suspension rights are without prejudice to any other rights and remedies available to Microsoft.
(h) Taxes on Payments. You are responsible for your own taxes, including taxes unique to where you reside, that are related to payments you may receive under this Agreement. You are also responsible for paying any sales, use, goods and services, value-added or similar taxes (if any) in connection with any Store Service Fee that Microsoft collects from you. You must provide accurate information regarding your tax profile as requested by Microsoft. If you complete and submit to Microsoft a Certificate of Foreign Status, you: (i) hereby represent and warrant that your services are not provided in the U.S.; or (ii) must notify Microsoft via e-mail to us_services_notify@microsoft.com that your services are performed in the U.S. If Microsoft is required to withhold any taxes on any amounts to be paid by Microsoft to you, Microsoft will deduct such taxes from the amount owed and pay them to the appropriate taxing authority and, as required and solely to the extent within Microsoft’s ability, as determined in its sole discretion, to obtain an official receipt for any such taxes withheld and deliver such receipt to you. Microsoft will use reasonable efforts to minimize such taxes to the extent permissible under applicable law, and each party will reasonably cooperate with the other to obtain the lowest tax rates or elimination of such taxes pursuant to the applicable income tax treaties. If a Customer is required to withhold any taxes on the purchase of your Product, the amount to be paid by Microsoft to you will be reduced by such withheld amount, and Microsoft will not provide to you any receipt for any such withheld taxes. If you are located in Australia and wish to submit paid Products to the Commercial Marketplace for distribution by Microsoft (or any sub-agents appointed in accordance with Section 5(a) of this Agreement) as your agent or commissionaire, you: (A) are required to be registered for Australian Goods Services Tax (“AU GST”); (B) must provide Microsoft with your Australian Business Number; and (C) must affirm that you are AU GST registered when setting up your Publisher Account. If you are located in New Zealand and wish to submit paid Products to the Commercial Marketplace for distribution by Microsoft (or any sub-agents appointed in accordance with Section 5(a) of this Agreement) as your agent or commissionaire, you: (1) are required to be registered for New Zealand Goods and Services Tax (“NZ GST”); and (2) must affirm that you are NZ GST registered when setting up your Publisher Account. If you are in a country that recognizes a sale to Microsoft as a taxable supply for VAT/GST purposes, that supply is deemed to be made to Microsoft exclusive of VAT. Microsoft makes no warranty that its collection of taxes as related to agency transactions in the countries listed in accordance with Section 5(i) discharges you from your own tax obligations.
(i) Taxes on Product Transactions. Each of your and Microsoft’s responsibilities for calculating, charging, collecting and remitting sales, use goods and services, value-added or similar taxes, if any, applicable to Customers’ acquisitions of your Product through the Commercial Marketplace are available at Tax details for Microsoft commercial marketplace. Microsoft makes no warranties that Microsoft’s or its Affiliates’ actions will completely satisfy your obligations in these countries. You are solely responsible for determining whether you have any tax obligations in any country. You are also solely responsible for appropriately identifying the content type for, and providing accurate information to Microsoft with respect to, any content you offer or sell from within your Product. Microsoft is not responsible for collecting and remitting telecommunications taxes or any similar taxes in connection with Customers’ acquisition of your Product. You acknowledge and agree to cooperate with Customers to facilitate the furnishing, exchange, transmittal or other provision of tax documentation, and such cooperation includes, but is not limited to, authorizing Microsoft to grant Customers the ability to contact you to obtain any required tax invoices.
6. WARRANTIES
You represent, warrant, and undertake to Microsoft that:
(a) you have the power and authority to enter into this Agreement and to fully perform your obligations under this Agreement;
(b) if you are a business or other legal entity, then the individual entering into this Agreement on your behalf represents that he or she has all necessary legal authority to bind you to this Agreement;
(c) your Product and Product Assets, together with all advertising or other materials accessible from or that provide access to your Product and Product Assets comply with and will continue to comply with all requirements of this Agreement;
(d) if you are registered as a Microsoft partner your performance under this Agreement will comply with the Microsoft Partner Code of Conduct;
(e) Listing, distribution, and monetization of your Product in the Commercial Marketplace does not and will not violate any agreements to which you are a party or of which you are otherwise aware. You have obtained any and all consents, approvals or licenses (including written consents of third parties where applicable) required for you to make your Product, or Product Assets available in the Commercial Marketplace and for your Product to access any Internet-based or Microsoft-provided services, if any, to which the Product enables access;
(f) Microsoft's exercise of the rights you grant under this Agreement will not obligate Microsoft or its Affiliates to pay any third party any amounts; and
(g) the information you provide to Microsoft under or in connection with this Agreement is true, accurate, current, and complete.
7. CONFIDENTIALITY, PRIVACY, SECURITY AND DATA PROTECTION
(a) Confidentiality. Information shared under this Agreement is subject to our existing Non-Disclosure Agreement (“NDA”). If no NDA exists, then during the term of this Agreement and for 5 years after, the parties will hold in strictest confidence, and will not use or disclose any Confidential Information of the other party to any third party (except to an Affiliate or contractor performing services on behalf of the recipient, and only subject to confidentiality terms as protective as this section). This section does not prohibit either party from responding to lawful requests from law enforcement authorities.
(b) Privacy.
(i) Disclosure of Information. Microsoft may disclose your contact information as necessary for Microsoft to administer this Agreement through its Covered Parties and other parties that help Microsoft administer this Agreement. Where required for Microsoft’s license administration, incentive program participation, or financial settlement, you will provide the following additional information about transactions with Customers to Microsoft: Customer name and address and system where Product is being installed (i.e., Tenant ID and location).
(ii) Privacy Policy. You must maintain a privacy policy if: (A) your Product accesses, collects or transmits any Personal Data to you or a third party; (B) you elect to receive Product Analytics and Error Reporting Data as provided in this Section 7; or (C) otherwise required by law. You are responsible for informing Customers of your privacy policy (including by submitting that policy to us for display to Customers).
(iii) Contacting Customers. Microsoft may share Customer information with you, which may include Personal Data. You must only use the Customer contact information and any other customer Personal Data in accordance with Data Protection Law and solely for transactional purposes to contact the Customer regarding your Products available in the Commercial Marketplace. You may not use such contact information to direct Customers to purchase your Product on competing marketplaces. You must independently obtain Customer’s consent for any other use, including for marketing purposes, of Customer contact information or Customer Personal Data obtained from Microsoft, and Microsoft will not be responsible or liable for such other use.
(iv) Roles. With respect to the Personal Data collected from Customers, you and Microsoft agree that you and Microsoft are not joint controllers, as defined in the GDPR, of the Personal Data that each independently Processes. Microsoft is an independent controller for such purposes and you are an independent controller or a processor to an entity other than Microsoft as applicable based on your relationship established with Customers.
(c) Data Protection.
(i) Error Reporting Data. Microsoft may, at its discretion, provide you with crash data (“Error Reporting Data”). If Microsoft provides any Personal Data in the Error Reporting Data, then between you and Microsoft, that Personal Data is Microsoft Confidential Information. You agree to use Error Reporting Data solely for the purpose of testing and resolving compatibility issues, fixing and resolving “bugs” or other quality issues related to your Product, and not to disclose it for any purpose. You agree to delete such Error Reporting Data that includes Personal Data within 30 days after receipt, and to return to Microsoft or destroy that information immediately upon Microsoft’s request. During such 30 days, you must store any Personal Data only on a secure server with access to such server limited to you, or if an entity, your regular employees with a business need for access. The following types of non-personally identifiable data can be retained beyond 30 days, also on a secure server with limited access: 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). If you are served with a court order compelling disclosure of any Personal Data, 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 agree to conduct an audit on at least an annual basis to verify your compliance with the terms of this section.
(ii) Product Analytics Data. Microsoft may, at its discretion, provide you with in-Product telemetry (“Product Analytics”) data. If Microsoft exposes you to any Personal Data in the Product Analytics data, then between you and Microsoft, that Personal Data is Microsoft Confidential Information. You agree to use Product Analytics data solely for improving your Product. Further, you agree not to provide any Product Analytics data to third parties (except for 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 are not permitted to aggregate (or permit any third-party to aggregate) the Product Analytics data with any third-party data. You must not use the Product Analytics data to attempt to identify or derive information about any particular end-user or device.
(iii) Compliance with Data Protection Law. Each party will comply with the obligations imposed on it under all applicable Data Protection Law.
(d) Security. Your Products, network, operating systems and the software of your servers, databases, and computer systems must use reasonable security measures to protect Customer information. Your Product must not jeopardize or compromise user security, the security of the Commercial Marketplace, any related services or systems, or any Customer’s systems and must not install or launch executable code on the user's environment beyond what is identified in or may reasonably be expected from the Product listing.
(i) Security Standards. If your offer collects credit card information or uses a third-party payment processor that collects credit card information, the payment processing must meet the current PCI Data Security Standard (“PCI DSS”).
(ii) Security Incidents. You must report suspected security events, including security incidents and vulnerabilities of your Product and service offerings, at the earliest opportunity by using the following notification process.
8. REPORTING
Microsoft will provide you the reporting capabilities we are required to provide under applicable tax laws and regulations. The reporting capabilities available to you through Partner Center will provide aggregate information relating to your Product downloads and Product transactions and Microsoft's payments to you under this Agreement.
9. DISCLAIMER, LIMITATION OF LIABILITY, AND DEFENSE OF CLAIMS
(a) DISCLAIMER OF WARRANTY. WE PROVIDE THE COMMERCIAL MARKETPLACE AND PARTNER CENTER "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING THE COMMERCIAL MARKETPLACE AND PARTNER CENTER. MICROSOFT MAKES NO WARRANTIES RELATED TO ANY PROGRAMS OFFERED IN CONNECTION WITH OR ANY OTHER SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT. MICROSOFT EXCLUDES ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT, RELATING TO THE COMMERCIAL MARKETPLACE AND PARTNER CENTER. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF AND SOLELY TO THE EXTENT THAT THEY ARE APPLICABLE. WITHOUT LIMITING THE FOREGOING, COVERED PARTIES EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO, OR USE OF, THE COMMERCIAL MARKETPLACE OR PARTNER CENTER WILL BE UNINTERRUPTED OR ERROR FREE.
(b) LIMITATION OF LIABILITY. EXCEPT FOR THE OBLIGATIONS ARISING OUT OF SECTION 9(d) AND 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 (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, REVENUE, AND/OR PROFITS) ARISING OUT OF OR THAT RELATE IN ANY WAY TO THIS AGREEMENT. THIS EXCLUSION WILL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED, WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER APPLICATION OF THE EXCLUSION CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU CAN ONLY RECOVER FROM COVERED PARTIES DIRECT DAMAGES UP TO THE GREATER OF: (i) THE TOTAL AMOUNTS YOU RECEIVED OR WERE DUE TO RECEIVE UNDER THIS AGREEMENT DURING THE PREVIOUS 12 MONTHS; OR (ii) FIVE THOUSAND ($5,000) USD.
(d) Indemnity. You will defend, indemnify and hold harmless Covered Parties, from and against (including by paying any associated costs, losses, damages or expenses and attorneys' fees) any and all third party claims: (i) alleging that your Product infringes any proprietary or personal right of a third party; (ii) arising from your breach of this Agreement, (iii) relating to the functionality of, the use of, or the inability to use the Product, including any claims of product liability or misleading advertising; or (iv) by any tax authority based on any nonpayment or underpayment of any sales, use, goods and services, value-added or other similar tax, including any associated penalties and interest, which you are obligated to pay. The Covered Party will: (A) promptly notify you of the claim; provided, however, a Covered Party's failure to notify you shall not relieve you of any liability that you may have, except to the extent that such failure materially prejudices your legal rights; and (B) at your reasonable request, provide you with reasonable assistance in defending the claim. You will: (1) reimburse the Covered Party for any reasonable out-of-pocket expenses incurred in providing that assistance; and (2) permit the Covered Party, through mutually acceptable counsel, to answer and defend such claims. You will not make any settlement or compromise of a claim or admit or stipulate any fault or liability on a Covered Party with respect to any claim covered by this section without such Covered Party's express, prior written consent. Covered Parties who are not party to this Agreement are beneficiaries of this Agreement solely for the purpose of enforcing the rights granted to such Covered Parties in this Section 9.
(e) Limitation on Claims. As permitted by applicable law, any claim related to this Agreement or to a Commercial Marketplace must be filed within one year of the claimant first becoming aware of the claim. If it is not filed within that time, then the claim is permanently barred. This applies to you and your successors and to Microsoft and our successors and assigns.
10. TERM AND TERMINATION
(a) Termination for Convenience. This Agreement will remain in effect until terminated. Either party may terminate this Agreement at any time, for any reason or no reason, upon 30 days’ written notice.
(b) Effect of Termination. Within 30 days of either party’s notice of termination of the Agreement, Microsoft will remove all of your Products from the Commercial Marketplace, notify existing Customers that the product has been removed and may not be used after the Wind-Down Period specified in 10(c), and for Microsoft billed transactions, stop billing Customers for your Products after the Wind-Down Period. We reserve the right to remove your Products on an expedited basis if we terminate this Agreement for material breach.
(c) Wind-Down Period. Except as set forth in this Section 10(c), if a Product is removed, we will continue to bill for usage for 90 days (“Wind-Down Period”). You must continue to provide any services that are part of your Product to each existing Customer during the Wind-Down Period. You are responsible for terminating any Customer access after termination and any applicable Wind-Down Period. Except in cases where termination is legally required or is otherwise necessitated by compelling circumstances, such as fraud or a claim of intellectual property infringement, we will not stop billing for Products transacted in the Commercial Marketplace prior to completion of the applicable Wind-Down Period.
11. MISCELLANEOUS
(a) Notices.
(i) All notices that you provide to Microsoft under this Agreement must be sent through Partner Center using this link.
(ii) For notices to you under this Agreement, you will identify an individual through the Partner Center to serve as the primary contact for Partner Center notices and messages. This contact will receive all notices unless you change such contact information through Partner Center.
(b) Assignment. Microsoft may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you to a Microsoft Affiliate. Microsoft may perform certain of our obligations under this Agreement through one or more Microsoft Affiliates. You may not assign or delegate any rights or obligations under this Agreement, including in connection with a change of control. Any purported assignment and delegation shall be ineffective.
(c) Sublicensing and Subcontractors. Microsoft may sublicense its rights under this Agreement to third parties or otherwise authorize third parties to assist Microsoft in performing its obligations or exercising its rights under this Agreement. Microsoft will remain obligated under this Agreement for the performance of such third parties excepting any assumption of responsibility for the administration of any sales, use, goods and services, value-added or other similar tax.
(d) URLs. URLs listed in this Agreement also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at the specified URLs.
(e) Choice of Law and Venue. This Agreement is governed by Washington state law (disregarding conflict of laws principles) and the parties consent to exclusive jurisdiction and venue in the state and federal courts in King County, Washington, USA. Neither party will claim lack of personal jurisdiction or forum non conveniens in these courts. In any action or suit related to this Agreement, the prevailing party is entitled to recover its costs, including reasonable attorneys’ fees.
(f) Miscellaneous. A party’s failure to enforce any rights under this Agreement will not be deemed a waiver of the same right on another occasion, or of the right to enforce any other right under this Agreement. Sections of this Agreement that, by their terms, require performance after the termination or expiration of this Agreement will survive. This Agreement is nonexclusive, and nothing in this Agreement restricts you or Microsoft from entering into other, similar agreements with other marketplaces or partners, or from acquiring, licensing, developing, manufacturing, or distributing similar or competing technologies. This is the entire Agreement between you and Microsoft in connection with your use and publication of Listings in the Commercial Marketplace. It supersedes any prior agreements between you and Microsoft regarding your use and publication of Listings in the Commercial Marketplace. All parts of this Agreement apply to the maximum extent permitted by relevant law. If a court holds that Microsoft cannot enforce a part of this Agreement as written, Microsoft may replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Agreement will not change. This Agreement’s section titles are for reference only and have no legal effect. Neither this Agreement, nor any terms and conditions contained herein, create a partnership, joint venture, employment relationship, or franchise relationship.
12. DEFINITIONS
(a) “Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party. “Own” means more than 50% ownership or the right to direct the management of the entity.
(b) “Certification” means Microsoft's process for testing the compliance of Products with the applicable Certification Requirements. A Product is "Certified" when: (i) Microsoft (or Microsoft's designated certification provider) confirms that the Product has completed and passed the Certification Requirements; and (ii) the Product is packaged and signed with a Microsoft-issued certificate for those categories of Products in which Microsoft makes available such Microsoft-issued certificates. For clarity, the Microsoft 365 Certification Program is an additional certification process, as set forth in Section B of Addendum C.
(c) “Certification Requirements” means the technical, functional, content, and other policy requirements provided by Microsoft, including the Commercial Marketplace certification policies.
(d) “Commercial Marketplace” means the Azure Marketplace, Microsoft AppSource, the Office Store and any Microsoft owned or operated endpoints that point to those storefronts through which Products may be offered to or acquired by Customers, including any updates or successors (however named) to such storefronts.
(e) “Confidential Information” means all non-public information that a party designates as confidential, or which under the circumstances of disclosure ought to be treated as confidential. Confidential Information does not include information that is: (i) known to a party before the disclosing party’s disclosure to the receiving party; (ii) information publicly available through no fault of the receiving party; (iii) received from a third party without breach of an obligation owed to the disclosing party; or (iv) independently developed by a party without reference to or use of the disclosing party’s Confidential Information.
(f) “Covered Parties” means, collectively, Microsoft, Microsoft's Affiliates, authorized resale partners as described in Addendum B, and network operators that provide billing services for the Commercial Marketplace.
(g) “Customer” means an end user who seeks or acquires a right to use or redistribute your Product.
(h) “Data Protection Law” means any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution relating to data security, data protection and/or privacy, including but not limited to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”) and the California Consumer Privacy Act (“CCPA”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
(i) “Documentation” means the Certification Requirements and such other Commercial Marketplace or Microsoft Partner Network materials, and information Microsoft makes available to you from time to time pursuant to this Agreement for your internal use.
(j) “List,” “Listed” or “Listing” means the creation or display in the Commercial Marketplace of a catalog entry or description for a Product.
(k) “Microsoft Mark(s)” means trademarks and services marks, logos, badges and other business identifiers described in the Microsoft Branding Guidelines, including any other trademarks, service marks, logos, and badges that Microsoft identifies in writing as being available for use by you pursuant to the Agreement or Addenda.
(l) "Partner Center" means the web portal, currently available at https://partner.microsoft.com, or other Microsoft owned and operated interfaces, through which developers access their Publisher Account and receive communications from Microsoft relating to the Commercial Marketplace and can submit Products for Certification and make Products available in the Commercial Marketplace.
(m) “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) and any other data information that constitutes personal data or personal information under any applicable Data Protection Law. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
(n) “Processing” means any operation or set of operations that is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction. “Process” and “Processed” will have corresponding meanings.
(o) “Product” means the product submitted by you to Microsoft for evaluation, Certification, and publication through the Commercial Marketplace, including any additional content sold or offered from within a product.
(p) “Product Assets” means, for each Product, the name, trademarks, logos, icons, product descriptions, titles, trade dress, images, screenshots, video trailers, user generated content, and other metadata you provide to Microsoft in connection with your Product.
(q) “Publisher Account” means a service account for publishing your Product through Partner Center, which includes a user name and password.
(r) “Publisher Net Receipts” means the aggregate amounts collected by Microsoft from Customers for their use of Publisher’s Products for a specific payment period, less any applicable taxes, refunds, and chargebacks (if applicable).
(s) “Publisher Net Revenue” means the sum payable by Microsoft to Publisher for Products purchased directly through the Commercial Marketplace. Publisher Net Revenue is calculated based on the Publisher Net Receipts minus the Store Service Fee.
(t) “Store Service Fee” means a fee collected by Microsoft for publishing your Product in the Commercial Marketplace, as further described in Section 5(c).
ADDENDUM A: TERMS APPLICABLE TO SPECIFIC CATEGORIES OF PRODUCTS
This Addendum supplements the terms and conditions of the Agreement for certain offer types. To the extent this Addendum contains additional or different terms than those included in the body of the Agreement, this Addendum will control.
1. VIRTUAL MACHINE IMAGES
(a) Base Images. In addition to all other relevant third party approvals, if your Product contains virtual machine images (“Images”) derived from Microsoft or other party (such Image, a “Base Image”) (such Product, an “Image Product”), you are responsible for obtaining any necessary permissions from the owner of the Base Image prior to publishing your Image Product.
(b) New Virtual Machine Sizes. For Image Products, you will be directed to designate prices based on virtual machine sizes available in Azure at the time of your publication request. Following publication of your Image Product, in the event that we plan to offer a new virtual machine size (based on the number of cores), we will notify you and provide you with at least 30 days to designate prices for the new virtual machine size. Failure to designate pricing within such time will constitute your designation of prices for the new virtual machine size equal to the rate proportional to the difference in the number of cores between the new virtual machine size compared to the existing virtual machine size(s) then in effect for your Image Product.
(c) Virtual Machine Extensions. Any software or other data installed by your Image Product, even if retrieved from an external location, is considered a Product for purposes of this Agreement. You will be responsible, and must provide support to Customers, for any extensions or handlers associated with your Image Products.
(d) Inclusion of Microsoft Software Products in Image Products. With Microsoft approval, you may include Windows Server, SQL Server and Microsoft Dynamics NAV as part of your Image Product (“Microsoft Software Products”). You must create your Image using a Base Image published by Microsoft in the Commercial Marketplace that consists of the same Microsoft Software Products that you have been authorized to include in your Image Product. You may not publish an Image that includes copies of Microsoft Software Products that you obtained elsewhere, whether from Microsoft or from a Microsoft reseller. You may not download a Base Image and run copies of any Microsoft Software Products therein outside of Azure for the purpose of creating your Image unless you have valid pre-existing licenses that permit such use.
(i) No Modification. You must include complete copies of the Microsoft Software Products in your Image. You may configure the Microsoft Software Products solely as necessary to work with your Products. You may not modify the Microsoft Software Products in any other way, including reverse engineering, decompiling, or disassembling the Microsoft Software Products, or tampering with any license or activation features in the Microsoft Software Products. You must maintain and not alter, obscure, or remove any copyright or other protective notices, identification, branding, or legends or license terms contained in the Microsoft Software Products. Except as expressly provided, this Agreement does not grant you any right, title, or interest in or to any Microsoft Marks.
(ii) Excluded Licenses. You may not take any action that would cause any Microsoft Software Product, or any other Microsoft product, service, or documentation to be governed, in whole or in part, by an Excluded License. “Excluded License” means any license that requires, as a condition of the use, modification, or distribution of software subject to such license, that such software or other software combined or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributed at no charge. Without limiting the generality of the foregoing, any version of the GNU General Public License (“GPL”), Lesser/Library GPL, or Affero GPL will be considered an Excluded License.
(e) Distribution of Microsoft Software Products in Image Products. You may only make Microsoft Software Products within your Image Product available via the Commercial Marketplace. You may not make the Microsoft Software Products that are part of your Image Product available through any other channels. Microsoft alone is the licensor of any Microsoft Software Products included within your Image Products, and any use by Customers of such Microsoft Software Products is governed by Microsoft’s license terms. Nothing in this Agreement grants you the right to license or sublicense any Microsoft Software Products to Customers or any other third parties. The terms of use associated with your Image must make clear that: (i) the rights you grant to Customers extend only to your Products within the Image and not to any Microsoft Software Products within the Image; (ii) Microsoft is the licensor of any Microsoft Software Products within the Image; and (iii) the Customer’s use of any Microsoft Software Products within the Image will be governed by Microsoft’s license terms.
(f) Recall of Microsoft Software Products. We may issue a notice of recall of a Microsoft Software Product at any time in our sole discretion for reasons such as, but not limited to, a serious security vulnerability in the Microsoft Software Product. If you receive a notice of recall, you agree to remove any Image Products that include the impacted Microsoft Software Product from the Commercial Marketplace within 10 business days. Following the notice of recall, we may, but will have no obligation to, make a replacement Microsoft Software Product available to you in place of the recalled Microsoft Software Product.
(g) Termination. Upon termination of this Agreement or removal of your Image Product from the Commercial Marketplace, your rights under this Addendum will automatically terminate and you must destroy all copies of Microsoft Software Products included in your Image Product.
(h) Miscellaneous.
(i) ADDITIONAL DISCLAIMER OF WARRANTIES. ALL MICROSOFT SOFTWARE PRODUCTS ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. YOU ASSUME ALL RISK AS TO YOUR USE OF THE MICROSOFT SOFTWARE PRODUCTS, INTEROPERABILITY BETWEEN YOUR OFFERING CONTENTS AND THE MICROSOFT SOFTWARE PRODUCTS, YOUR OFFERING OF IMAGES THAT INCLUDE MICROSOFT SOFTWARE PRODUCTS, AND CUSTOMERS’ USE OF YOUR IMAGES THAT INCLUDE MICROSOFT SOFTWARE PRODUCTS.
(ii) Support. Microsoft has no obligation under this Agreement to provide technical support to you regarding any Microsoft Software Products or creation of Images that include Microsoft Software Products or to Customers regarding use of any Microsoft Software Products within your Image Product.
(iii) Export Restrictions. You acknowledge that the Microsoft Software Products are of U.S. origin and subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Microsoft Software Products, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. For additional information, see Exporting Microsoft Products.
2. AZURE APPLICATIONS
(a) Templates. If you publish an Azure Resource Manager template (“ARM Template”) that references another publisher’s Product (a “Third-Party Product”), you may not represent yourself as the publisher of the Third-Party Product. You also acknowledge and agree that other publishers may reference your Products in their ARM Templates in a manner consistent with this Agreement. Notwithstanding any inclusion of your Product in another publisher’s ARM Template, you will remain the publisher of your Product for all Customer deployments of the ARM Template, your terms of use and privacy policy will continue to govern your relationship with such Customers, and such other publisher will not be entitled to any of the Publisher Net Receipts attributable to Customers’ use of your Product.
(b) Attribution IDs. Microsoft will insert Customer Usage Attribution IDs into your Azure Application technical payload on your behalf. A “Customer Usage Attribution ID” is a digital tag that enables Microsoft to identify and meter usage of resources deployed by your Product in Customer subscriptions. If your Product uses ARM APIs or Terraform to deploy Azure resources programmatically, you may also need to insert a Customer Usage Attribution ID into your API calls.
3. PRODUCTS FOR USE IN CUSTOMERS’ ON-PREMISES ENVIRONMENT
If you choose to make a Product available for use in Customer’s on-premises environments (e.g., on Azure Stack), we may enable Customers to download and use such Products in their on-premises environments. You agree that Customers’ acceptance of your terms of use for such Products will entitle them to use such Product in their on-premises environments. You acknowledge that you, not Microsoft, are the distributor of such Product.
4. METERING SERVICES
(a) Marketplace Metering Service. If you publish a Product that requires usage-based billing fees, you can use the Marketplace Metering Service (as defined below). The Marketplace Metering Service allows you to charge Customers based on events captured within your Product (the “Marketplace Metering Service”). We expect you to transmit usage-based billing data to Microsoft hourly via API, and we will use commercially reasonable efforts to notify you if we have not received usage-based billing data for 72 hours. We reserve the right to mark the usage event as expired if we do not receive usage-based billing data within 24 hours.
(b) Customer Notifications and Support. If you choose to use the Marketplace Metering Service you will be responsible to: (i) notify Customers that you will collect, generate, and deliver to Microsoft all data related to Customers’ usage of the Product necessary to calculate the applicable usage fees; (ii) report such usage accurately to Microsoft; (iii) notify Customers and Microsoft of any erroneous usage information reported to Microsoft; (iv) resolve any Customer inquiries with respect to usage disputes within 3 business days, and notify Microsoft if a refund to the Customer is necessary; and (v) review usage identified by Microsoft as abnormal within 3 business days. You agree that Microsoft has the right not to bill and collect fees or withhold payouts for any usage information provided more than 24 hours after the close of any billing cycle or any usage-based billing that is detected or otherwise appears to be erroneous.
(c) Recordkeeping and Audits. We reserve the right to: (i) audit your records to verify the reported usage in connection with the Marketplace Metering Service and your compliance with the Agreement; and (ii) suspend your use of the Marketplace Metering Service if you repeatedly submit erroneous usage information to us or fail to resolve Customer inquiries within 3 business days.
5. LICENSE MANAGEMENT SERVICE
(a) Applicability and Eligibility. This Section 5 applies to your Products that use Microsoft’s license management service for non-Microsoft published Products (the “License Service”). Your Products may be eligible to use the License Service if you participate in the ISV Connect Program. To use the License Service, you must define and maintain in Partner Center the details (including posted pricing) for each plan for your Product that you want to license and List and may require deal registration in Partner Center.
(b) Service Description. The License Service enables (i) the Publisher to specify the number of licenses of each plan-type (e.g., Bronze, Silver, Gold) for a Customer implementation, (ii) the Customer to consent to installation of the licenses and solution by the publisher in the Customer’s tenant, (iii) the Customer to assign its licenses to individual users, and (iv) Microsoft to control or block user use of the solution based on assigned user licenses.
6. MICROSOFT TEAMS PRIVATE CUSTOMIZATIONS
If you choose to make information about your Product (such as the name, short description, long description, logo, color icon, outline icon, accent color, branding and trade dress elements, developer URL, privacy URL, terms of use URL) to be freely customizable by Customers, you assume all legal risks created by such modifications, including the alternation, deletion, and replacement of your intellectual property, and the changing of any terms of use and privacy statements.
ADDENDUM B: TERMS AND CONDITIONS APPLICABLE TO DISTRIBUTION OF PRODUCTS THROUGH INDIRECT CHANNELS AND IN RESELLER COUNTRIES
1. MICROSOFT PARTNER RESELLERS
If you indicate that you want to make your Products available to indirect channels in Partner Center, you agree to the following terms.
(a) Indirect Channels. If Customers purchase your Product in indirect channels, your sale of the Products will be to the applicable Microsoft reseller, not Customers. We will bill the Microsoft resellers, as your agents or commissionaires, at the price you have set for a reseller for their Customers’ use of your Products and will collect the Store Service Fee on Publisher Net Receipts for sales to resellers. Such Microsoft resellers will be responsible for setting the prices at which they resell your Products to their Customers (or to other Microsoft resellers) and for collecting such amounts from their Customers (or Microsoft resellers).
(b) Limiting Countries/Territories. If you do not wish to allow a Product to be resold by Microsoft in a particular country or territory, you must make your Product unavailable for purchase in such country. Removal of a Product in any country or territory will apply to both indirect channel sales and direct to customer sales in that country.
(c) Licensing of Products. Your terms of use, license agreement, and privacy policy for the Products will apply to Customers that result from indirect sales.
2. PRODUCTS MADE AVAILABLE IN MICROSOFT RESELLER COUNTRIES
(a) If you make your Product available in one of the “Reseller Countries/Regions” as listed at Tax details for commercial marketplace publishers, then Microsoft shall act as a reseller, rather than your agent, in making your Product(s) available in the Commercial Marketplace in that listed country or region only and you agree to the following modified and additional terms and conditions solely in connection with the offering and distribution of your Product(s) in such country(ies). Except as expressly provided in this Section, the Terms and Conditions in the Agreement apply to the Product in such country(ies).
(b) Product Pricing. Notwithstanding Section 5 of the Terms and Conditions, when you submit a Product and choose to make the Product available as provided in this Section 2, you may suggest the price (if any) to be charged to Customers (consistent with the price points specified by Microsoft in the Documentation) in that country, and Microsoft may charge that price (or another price that Microsoft or a resale partner chooses in its discretion) in making your Product available in the Commercial Marketplace in that country.
(c) Payment Terms and Fees. Amounts payable to you in connection with the sale of your Product in the country(ies) listed in this Section 2 will be calculated and paid to you as provided in the Agreement. However, these amounts will be provided to you as a royalty payment in exchange for the right to sell in such country(ies).
ADDENDUM C: TERMS AND CONDITIONS APPLICABLE TO OFFICE STORE AND MICROSOFT 365 CERTIFICATION PROGRAM
SECTION A. OFFICE STORE TERMS
This Section A governs your use of the Office Store. To the extent this Section A contains additional or different terms than those included in the body of the Agreement, this Section A will control.
1. PRE-RELEASE VERSION. LICENSING OF PRODUCT
(a) Pre-Release Version. The Office Store may be made available to Customers using a “beta” or pre-release version. If the Office Store is available to Customers using a pre-release version, which Microsoft may change for the final, commercial version, the Office Store may not work the way a final version of the Office Store would work. We also may not release a commercial version of a given pre-release version. If you decide to make use of any of the rights under this Section B, you assume all responsibility for and risk of any and all damages that may result from or in connection with the use or compatibility of the Office Store with pre-release versions of Office 2013, including, without limitation, the unavailability or interruption of operations or the loss of any data or other content.
(b) Licensing of Product. You must provide a license agreement to the Customer with your Product. If you did not provide a license agreement with your Product, or your license agreement does not comply with the requirements in the next sentence, then the Standard Application License Terms, available here, will apply between you and your Customers. Your license must:
(i) let the Customer download and run your Product on up to 5 devices associated with that Customer’s Microsoft Account, without any additional fees;
(ii) include “disclaimer of warranty” and “limitation on and exclusion of remedies and damages” sections that are at least as protective of distributors as the terms in the Standard Application License Terms;
(iii) disclaim any support services from Microsoft;
(iv) not conflict, in any way, with the Standard Application License Terms; and
(v) comply with all applicable laws and regulations.
(c) If you choose to participate in the Microsoft 365 Certification Program, you can do so in accordance with the terms of the Microsoft 365 Certification Program in B below.
ADD-INS ON NON-MICROSOFT PLATFORMS
(a) Microsoft will make certain Office Store Products (also known as “add-ins”) available to users of Office on non-Microsoft platforms such as Apple's App Store, Google Play Store, and other App Store and operating systems (collectively “Additional App Store”).
(b) You grant Microsoft, its Affiliates, distributors and agents any and all required rights to publish and distribute your add-ins on an Additional App Store, including any applicable sublicense rights.
(c) Microsoft does not have any obligation to publish your Product on any Additional App Store Microsoft may publish your Product on some platforms but not on others.
(d) Microsoft may remove your Product at any time and with no notice if the Product does not comply with an Additional App Store's terms and conditions. This may include immediately disabling the Product for existing users.
(e) Your Product must remain free and must not contain in-App purchases or present a trial version designed to upsell users to a paid version.
(f) Because your Product will be free, you will not receive any proceeds from Additional App Store.
(g) Microsoft may, at its own discretion, feature your Product in marketing materials including in descriptions in the Additional App Store. Microsoft has no obligation to market or otherwise advertise your Product.
(h) You must register with any Additional App Store you wish to publish on as a developer on that store and furnish Microsoft with your developer ID or equivalent for that App Store. Microsoft may use your name, developer ID, or other necessary information when communicating with the Additional App Store owner as part of publishing and administering your Product.
(i) Your Product must comply with any Additional App Store terms and conditions required to develop apps in that App Store.
SECTION B. MICROSOFT 365 CERTIFICATION PROGRAM
This Section B governs your participation in the Microsoft 365 Certification Program, as currently documented at Microsoft 365 Certification Program). This Section B applies only if you choose to participate in the Microsoft 365 Certification Program. By submitting your Product for inclusion in the Microsoft 365 Certification Program, you agree to be bound by this Section B and the Agreement. To the extent this Section B contains additional or different terms than those included in the body of the Agreement, this Section B will control.
1. Definitions
Capitalized terms not otherwise defined herein have the same meanings provided in the Agreement. The term “Certification” as used in this Section B refers to certification under the Microsoft 365 Certification Program, and does NOT have the same meaning as defined in the Agreement.
(a) “Microsoft 365 Certified Product” means a Product that meets the applicable Microsoft 365 Certification Criteria, as confirmed through the evaluation procedures described in Section 2, and that is identified by product name and version and other identifying factors required in the Submission Forms.
(b) “Microsoft 365 Certification Criteria” or “Criteria” means the security, privacy, compliance controls and other requirements provided by Microsoft and applicable to your Product as of the date you submit the Product for Certification to Microsoft. Depending on the Microsoft Mark, Microsoft 365 Certification Criteria may be published in connection with the Microsoft 365 Certification Program documentation, or may remain unpublished and treated as Confidential Information of Microsoft.
(c) “Microsoft Mark” means the Microsoft 365 Certified trademark, the “Works for Teams” badge and any other stylized badges, and or designations Microsoft provides under the Microsoft 365 Certification Program as documented.
(d) “Submission Forms” means the forms, questionnaires, or similar documents that Microsoft provides for requesting self-attestation and Certification of Products.
(e) “Supporting Evidence” means documents you provide as evidence that your Product meets the Criteria, including but not limited to audit reports, standard operating procedures, incident response plans, penetration test reports, data protection impact assessments, data flow diagrams, and system design or architecture diagrams. With the exception of documents or information you (i) have otherwise made public or (ii) consent to being public, we will treat Supporting Evidence as your Confidential Information.
2. Submission and Evaluation of Products
(a) Submission. For each Product you wish to enroll in the Microsoft 365 Certification Program you must submit the required Submission Forms and provide all information requested by Microsoft in the Submission Forms.
(b) Evaluation. We or our third-party evaluation agents will verify whether your Product meets the required Criteria based on the Supporting Evidence provided by you in the Submission Forms. We will make commercially reasonable efforts to complete the evaluation within a reasonable time.
(c) Request for Information. We or our third-party evaluation agents may, at our sole discretion, request additional information or documentation reasonably necessary to complete the evaluation. Failure to respond to requests for additional information may result in a denial of Certification and enrollment in the Microsoft 365 Certification Program.
(d) Evaluation Results. If the Product is determined to meet the Criteria, Microsoft or our third-party evaluation agent will notify you in writing that the Product is certified (“Notice of Certification”). In the event that the Product fails the evaluation, Microsoft or our third-party evaluation agent will report the reason for the failure. Reports provided under this Section 2(d)) may be sent by email.
(e) Re-Submission. If a Product fails evaluation 2 times (initial evaluation plus one additional re-evaluation of the corrected Product) Microsoft may reject any subsequent submissions for further evaluation of that same Product.
(f) Material Changes. In the event of (i) a modification to the source code or functionality of the Product, or your internal processes related to the Product, or any other event that renders the information provided in your Submission Forms materially untrue, or (ii) an update to the Criteria or other aspects of this Section C that, in Microsoft’s sole discretion, require that existing certified Products be re-evaluated against the updated Criteria, you must promptly, and no later than 30 days after the event, submit a request for re-evaluation, or discontinue the use of the Microsoft Mark in any manner that may imply that the Product continues to meet the Microsoft 365 Certification Criteria.
(g) Certification Term. Upon receipt of the Notice of Certification, your Product will be considered a Microsoft 365 Certified Product for the Certification Term. The “Certification Term” expires at the sooner of:
(i) one year from the date of the Notice of Certification;
(ii) within 30 days after a material change as provided in Section 2(f), provided however, that if you have submitted a request for re-evaluation within 30 days of the event of material change, the Certification Term will be automatically extended for up to 30 additional days while Microsoft completes the re-evaluation based on the revised information for the Product. If, at the end of the additional 30-day re-evaluation period, you have not received a renewed Notice of Certification, the Certification Term will immediately cease; or
(iii) termination of the Microsoft 365 Certification Program, or termination of the availability of a Microsoft Mark.
3. Microsoft Mark
(a) Limited License. Subject to all the terms of this B, we grant you a limited, non-exclusive, non-transferable, worldwide license to use the Microsoft Mark solely (i) in connection with your Microsoft 365 Certified Product and (ii) in compliance with Microsoft’s Branding Guidelines. We reserve all rights not expressly granted herein.
(b) Trademark Footnote. Where you include a trademark footnote to give notice of your own trademarks or third-party trademarks in relation to a Microsoft 365 Certified Product, you must add the following wording (or wording having equivalent legal effect) to the trademark footnote, when using a Microsoft Mark: “All other trademarks are the property of their respective owners.”
4. Term and Termination
(a) Term. For each individual Microsoft 365 Certified Product, this Section B shall extend for the Certification Term unless you (i) cease to offer the Microsoft 365 Certified Product for sale or distribution, or (ii) you are or your Microsoft 365 Certified Product is in material breach of this Section C.
(b) Cessation of Microsoft Marks Use. Upon expiration or termination of this Section B for any reason whatsoever, you will immediately cease all use of the Microsoft Mark. However, unless this Section B is terminated for your breach, you may distribute then-existing advertising materials containing Microsoft Mark for a period of 120 days.
5. Modification to the Microsoft 365 Certification Program
(a) New Certifications. Any time you submit a Product for evaluation pursuant to the Agreement, you agree to be bound by the then-current terms and conditions. If you do not agree with such an update to this Section B, you have no right to (and must not) submit a Product for evaluation and certification.
(b) Impact on Microsoft 365 Certified Product.
(i) In the event we update this Section B, including without limitation the Criteria, after you have already received a Notice of Certification, the existing Notice of Certification will remain valid for the then-existing remainder of the Certification Term except as stated in Section 5(b)(ii).
(ii) If we update the Criteria or other aspects of the Certification that require re-evaluation of your Product, we will provide you with a written notice (email shall suffice), and you will be required to resubmit your Product for re-evaluation, or terminate the use of the Microsoft Marks, in accordance with Section 2(f).
ADDENDUM D: COMMERCIAL BENEFITS PROGRAM ADDENDUM
This Commercial Benefits Program Addendum (“Addendum”) supplements the Terms and Conditions of the Agreement.
1. The Program
Under the Commercial Benefits Program (“Program”) you may qualify to receive certain benefits (“Program Benefits”) from Microsoft or its third-party partners or qualify to participate in additional sub-programs.
2. How it Works
You will be automatically enrolled in the Program when you make your Product available through one of our Commercial Marketplace. Program Benefits may become available from time to time during the Program term.
3. Program Benefits; Requirements and Limitations
(a) To qualify for many of the Program Benefits, your Product must be available to transact in our Commercial Marketplace.
(b) Program Level.
(i) Some Program Benefits will be made available only to Partners with certain development expertise. For purposes of this Agreement, development expertise will be known as “Program Level.”
(ii) Your Program Level will be determined by Microsoft based on criteria such as your existing Product performance, type of listing in the Commercial Marketplace, market relevance of your existing Products, Customer feedback on your existing Products, and level of investment and success.
(iii) You may need to provide Microsoft with information about existing Products that you have on other platforms for Microsoft to determine your Program Level. You may also need to register with a third-party service for Microsoft to verify this information. Microsoft is not responsible for such third-party service. Your use of the third-party service may be subject to that third party’s terms and conditions.
(iv) Your Program Level may change during the Program term and will be determined by Microsoft in its sole discretion.
(c) Some Program Benefits may have additional qualifying criteria, which you will need to meet to be eligible for those benefits. Such criteria will be disclosed by Microsoft when the Program Benefits are made available.
(d) Some Program Benefits may be subject to additional terms. By using such Program Benefits, you agree to be bound by these additional terms.
(e) Some Program Benefits may be provided by third parties. Microsoft is not responsible for third party websites, services, or Program Benefits. Your use of such Program Benefits may be subject to that third party’s terms and conditions.
(f) Program Benefits may be limited in number, change without notice, and be available for a limited time only or while supplies last. Some Program Benefits may be available in limited geographies and limited languages. Microsoft may substitute Program Benefits with a benefit of equal or greater value in the event supplies of a Program Benefit are exhausted.
4. Right to cancel, terminate, modify, or suspend
Microsoft may, in its sole discretion, cancel, terminate, modify, or suspend the Program, Program terms or any Program Benefits, in whole or in part. A Program Benefit may be withheld, reduced, or terminated or you may be removed from the Program, at any time and in the sole discretion of Microsoft. Microsoft may exercise its rights under this section for any reason, including, without limitation if you breach any of your obligations under this Addendum D or if you are suspected of committing fraud under this Program. In the event of such an occurrence Microsoft may post a notice on the Program page.