WINDOWS LIVE CONTACTS CONTROL BETA TERMS OF USE
October 5, 2006
1. INTRODUCTION. This is an agreement between you ("You") and Microsoft Corporation (located at One Microsoft Way, Redmond, WA 98052-6399) ("Microsoft") regarding Your access to and use of certain pre-release functionality of the Windows Live Contacts Control Services (the "Services").
MICROSOFT MAKES THE SERVICE AND THE SERVICE API (AS DEFINED BELOW) AVAILABLE TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY (See Section 5). THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN.
2. USE OF THE SERVICE. Subject to Your compliance with this agreement, You may access and use the Services through the use of the Windows Live Contacts Controls made available by Microsoft (the "Controls").
3. APPLICATION DESIGN AND USE RESTRICTIONS
3.1 As used in this Agreement, "Results" means search results available via the Services, such as contact information and such other result types as Microsoft may choose to make available via the Services from time to time.
3.2 Limitations on Use. You may not access the Services or the Controls to do any of the following things (either directly or through your development or distribution of software that does any of these things):
- provide any malicious, deceptive or unlawful program;
- violate any applicable law;
- violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights);
- sell, lease or sublicense Results or access to the Service or the Control;
- transmit, sell, license or deliver any infringing, defamatory, offensive, or illegal products, services or materials;
- threaten in any manner the integrity, performance, or availability of the Service; or
- violate local, state, federal or other applicable consumer privacy regulations.
3.3 Privacy. All access to and use of the Services are subject to the data practices set forth in the MSN Privacy Statement (http://privacy1.msn.com).
3.4 Service and API Updates. You acknowledge that Microsoft may in its sole discretion and at any time make feature or functionality updates to the Service or the Control that may impair or end the functionality of the Services or the Controls.
3.5 Usage Throttling. Microsoft may, in its sole discretion, limit the rate at which the Services, or any subset of it, may be called (“Throttling”). Microsoft may perform this Throttling globally across the Services, per end user, or on any other basis.
3.6 Your Responsibility. You will indemnify and hold Microsoft and its affiliates, agents and employees harmless from and against any and all loss, liability, and expense (including reasonable attorneys' fees) suffered or incurred by reason of any claims, proceedings or suits based on or arising out of any breach by You of any obligation or warranty under this agreement. You will be solely responsible for defending any claim, subject to Microsoft's right to participate with counsel it selects, and You will not agree to any settlement that imposes any obligation or liability on Microsoft without Microsoft's prior written consent.
3.7 Fees. Microsoft may choose in the future to charge for use of the Services or the Controls. If Microsoft in its sole discretion chooses to establish fees and payment terms for such use, Microsoft will provide notice of such terms as provided in Section 7 below, and You may elect to stop using the Services and the Controls rather than incurring fees.
4. TERM AND TERMINATION
4.1 Term. This agreement will become effective on Your first use of the Services or the Controls. This agreement may be terminated immediately for any reason and without notice by Microsoft. If this agreement terminates, all rights granted to You by this agreement will automatically terminate and You will cease to have any rights to use the Services or the Controls.
4.2 Remedies. You acknowledge that monetary damages may not be a sufficient remedy for breaches of this agreement and that Microsoft will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach.
5. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY AND REMEDIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES AND THE CONTROLS AND ALL ASSOCIATED RESULTS, MATERIALS AND SERVICES IS AT YOUR OWN RISK. THE SERVICES, THE CONTROLS, AND ANY RESULTS, MATERIALS OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS" AND WITH ALL DEFECTS. MICROSOFT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT THE SERVICES OR THE CONTROLS WILL OPERATE PROPERLY AS INTEGRATED WITH OR USED BY YOUR APPLICATION, AND ALL REPRESENTATIONS AS TO THE QUALITY OF THE SERVICES, THE CONTROLS, OR ANY ASSOCIATED RESULTS, MATERIALS OR OTHER SERVICES. MICROSOFT WILL NOT HAVE ANY LIABILITY IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION), EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU FURTHER AGREE THAT MICROSOFT'S AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS, ACTIONS AND/OR OMISSIONS ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $5.00. THESE LIMITATIONS WILL BE EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6. RESERVATION OF RIGHTS. Except for the licenses expressly granted under this agreement, Microsoft and its suppliers retain all right, title and interest in and to the Services, the Controls and all intellectual property rights therein.
This agreement does not grant You any rights in any Microsoft logo, trademark or service mark, and You will not use any logo, trademark or service mark of Microsoft in connection with a service or application using the Controls in any manner or for any purpose without the prior written approval of Microsoft. You will not claim or imply any sponsorship or endorsement of Your service or application by Microsoft.
7. MODIFICATIONS; NOTICES. If we change this contract, then we will give you notice before the change is in force. If you do not agree to these changes, then you must cancel and stop using the Services and the Controls before the changes are in force. If you do not stop using the Services or the Controls, then your use of the Services or the Controls will continue under the changed contract. Microsoft may give notices to You, at Microsoft's option, by posting on any portion of http://dev.live.com/contactscontrol or by electronic mail to any e-mail address provided by You to Microsoft.
8. MISCELLANEOUS.
8.1 Governing Law; Jurisdiction. This agreement will be construed under and controlled by the laws of the State of Washington, except for any conflict of law principles to the contrary. You hereby irrevocably consent to the personal jurisdiction of, and exclusive venue for, any legal proceeding commenced by You or on Your behalf, in the state and federal courts sitting in King County, Washington, USA.
8.2 Attorneys' Fees. In any action or suit to enforce any right or remedy under this agreement or to interpret any provision of this agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys' fees.
8.3 Assignment. You may not assign, sub-license, transfer, encumber or otherwise dispose of this agreement, or any of Your rights hereunder, by operation of law or otherwise, without Microsoft's prior written approval. Except as otherwise provided, this agreement will be binding upon and inure to the benefit of the parties' successors and lawful assigns.
8.4 Waiver and Severability. The failure of either party at any time to enforce any right or remedy available to it will not be construed to be a waiver of such right or remedy. If any provision of this agreement is held to be unenforceable in any respect, such unenforceability will not affect any other provision of this agreement.
8.5 Entire Agreement. This agreement, together with the Windows Live Contacts Control Beta SDK License Agreement, constitutes the entire agreement between You and Microsoft regarding the Services and the Controls. Microsoft may change this agreement at any time upon notice to You in accordance with the provisions of Section 7. Your continued use of the Services or the Controls after any such notice will signify Your acceptance of such change.