Microsoft Marketplace Publisher Agreement Last updated...

Microsoft Marketplace Publisher Agreement

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Last updated January 2017

Thank you for your interest in publishing in the Microsoft Marketplace(s). This Microsoft Marketplace Publisher Agreement (“Agreement”) describes the relationship between you and Microsoft Corporation, or based on the location of your primary headquarters, a Microsoft Corporation Affiliate identified in Section 12 (e) (“Microsoft,” “we” or “us”) and governs your publication of any Offering (as defined below) within Microsoft Marketplace(s).

By clicking to accept and/or by submitting an Offering to Microsoft for publication in the Marketplace, you represent and warrant to us that you have the authority to accept this Agreement, and you agree to be bound by its terms.

SECTION 1 Definitions.

(a) “Account Fee” means the fee you pay to Microsoft, if any, to establish and access your Publisher Account.

(b) “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.

(c) “Microsoft Reseller” means a Microsoft partner that is authorized to resell access to Microsoft Marketplace and/or Marketplace Offerings in one or more Indirect Channels.

(d) “Bring-Your-Own-License (BYOL) Offering” means an Offering for which Customers have obtained outside of the Marketplace the right to access or use the Offering.

(e) “Customer” means any Microsoft customer or end user who acquires, makes use of, or otherwise views an Offering published through the Marketplace.

(f) “Customer Data” means all data, including all text, sound, video, or image files, and software that are provided to you by, or on behalf of, Customers through their use of your Offerings.

(g) “Customer Information” means any information that you collect through the Marketplace or that we provide to you, in our discretion, about Customers who have purchased or accessed your Offerings, including contact information or, with respect to your Offerings, purchase history or usage information.

(h) “Dev Center” means a web portal through which publishers may register to offer software and other products and services through various Microsoft marketplaces, located at http://dev.windows.com or at an alternate site that we identify.

(i) “Free Trial Offering” means an Offering that you permit Customers to use for free during a limited, trial period.

(j) “Indirect Channel” means a sales channel in which Microsoft authorizes Microsoft Resellers to resell access to Marketplace Offerings. Terms applicable to availability of your Offerings in Indirect Channels are set forth in Exhibit C.

(k) “Listing Information” means the information and images accompanying an Offering that identify the nature, volume, User Fees, Terms of Use, and other features of the Offering, as specified by

http://dev.windows.com/


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you in connection with your request to publish the Offering or otherwise.

(l) “Marketplace” means a limited repository of links to Offerings published by Microsoft and various third-party publishers available through the Azure Marketplace or any other marketplace service through which Offerings are published subject to this Agreement. Customers may access the Marketplace via a web-based management portal, Azure APIs, or other mechanisms made available by Microsoft.

(m) “Marketplace Participation Policies” means the business policies and requirements for publishing in the Marketplace, as set forth at http://go.microsoft.com/fwlink/?LinkID=526833&clcid=0x409 or at an alternate site that we identify.

(n) “Marketplace Publication Guidelines” means the documentation by which we provide technical instructions and baseline requirements to publishers to assist them in creating, testing, and publishing Offerings within the Marketplace, as set forth at http://go.microsoft.com/fwlink/?LinkID=526831&clcid=0x409 or at an alternate site that we identify.

(o) “Microsoft Azure” or “Azure” means Microsoft’s Azure-branded cloud services platform.

(p) “Microsoft Azure Certified Guidelines” means the guidelines for participation in the Microsoft Azure Certified program and use of certification marks, as set forth at http://go.microsoft.com/fwlink/?LinkID=526832&clcid=0x409.

(q) “Microsoft Software Products” means certain Microsoft software products that Microsoft may authorize publishers to make available on Microsoft’s behalf within certain types of Offerings or Microsoft software products that interoperate with publisher's Offering. Terms governing publishers’ incorporation of Microsoft Software Products are set forth in Exhibit B.

(r) “Offering” means any software, data, media, or service published or proposed to be published in the Marketplace under this Agreement, and includes, without limitation, the Offering categories described in the Marketplace Participation Policies. Additional terms applicable to specific categories of Offerings are set forth in Exhibit A.

(s) “Offering Contents” means all data, software, and services included within, installable by, or otherwise associated with an Offering. Offering Contents include, without limitation, all operating system and application software associated with an Offering, not including any Microsoft Software Products, irrespective of whether you are the owner of such software.

(t) “Paid Offering” means an Offering for which User Fees are charged for Customers’ use of the Offering through the Marketplace. Paid Offerings do not include BYOL Offerings.

(u) “Privacy Statement” means a privacy statement that describes your practices regarding collection and use of Customer Data and Customer Information, as specified in the Listing Information associated with your Offering.

(v) “Publisher Account” means a publisher account for the Dev Center and/or Marketplace, which includes a user name and password.

(w) “Publishing Portal” means the web portal available at http://publish.windowsazure.com, or at an alternate site that we identify, through which publishers may submit Offerings for approval and publication within the Marketplace and access information and receive communications from

http://go.microsoft.com/fwlink/?LinkID=526833&clcid=0x409



http://publish.windowsazure.com/


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Microsoft relating to the Marketplace.

(x) “Terms of Use” means the legal terms under which you grant Customers the right to use or access your Offering, as well as all Offering Contents associated therewith, as specified in the Listing Information associated with your Offering.

(y) “User Fees” means a set of fees that you authorize Microsoft to charge Customers or Microsoft Resellers, as applicable, for Customers’ use of a Paid Offering. The Marketplace Participation Policies sets forth the pricing models supported by the Marketplace.

All other capitalized terms that are not defined in this Section 1 shall have the meanings assigned in the text of this Agreement.

SECTION 2 Publisher Account.

To submit certain types of Offerings to the Marketplace, we may require you to create a Publisher Account through the Dev Center of the Publishing Portal. We may verify information you submit when you set up your Publisher Account. You may be required to pay an Account Fee to create a Publisher Account or to submit your Offering for approval. We may use the contact information you provide in connection with your Publisher Account to send you newsletters and information regarding events, contests, promotions, and the like. Your Publisher Account is only for your use, and you are responsible for all activity that takes place within your Publisher Account. If you fail to keep your Publisher Account in good standing (for example, by failing to pay fees, if any, associated with the Publisher Account, providing incorrect or outdated information, engaging in dishonest or fraudulent activity, or repeatedly submitting Offerings that violate this Agreement, abuse the Marketplace service, or interfere with any other party’s use of the Marketplace) we may revoke your Publisher Account, remove your Offerings from the Marketplace, delete Offering ratings and reviews, retain associated Account Fees (if any), and pursue any other remedies available to us. SECTION 3 Submission, Approval, and Publication of Offerings.

(a) Submission Process. You must submit a request for each Offering that you wish to publish in the Marketplace. We may approve or reject any proposed Offering in our sole discretion, and may condition our approval on your making modifications to the Offering or its Listing Information. You are responsible for ensuring that the Listing Information associated with your Offering is accurate and does not violate third parties’ intellectual property rights, including third-party rights in trademarks or icons. We may require you to provide us with one or more Offering prototypes or to subject an Offering to testing prior to our approving it for publication. Following our approval of an Offering, you may publish the Offering in the Marketplace, subject to the terms and conditions of this Agreement, the Listing Information provided with your request, and your compliance with the Marketplace Participation Policies and Marketplace Publication Guidelines. You may not publish any Offering in the Marketplace unless we approve it in accordance with this Section 3(a). Once published in the Marketplace, we may periodically test the Offering at our discretion. We may, at our sole discretion, make minor changes to the Offering or its Listing Information to correct for error(s) or for other similar reasons so that Customers can properly use such Offering or its Listing Information.

(b) Publication Process. The Marketplace Publication Guidelines provide technical information about how different types of Offerings may be published in the Marketplace. As between you and Microsoft, you are solely responsible for making your Offerings available to Customers.


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(c) Presentation of Offerings. We reserve the right to determine the manner in which all Offerings, whether published by you or others, are presented and promoted in the Marketplace. We may display your Listing Information in connection with your Offering, as well as other information designed to inform Customers that the Offering is provided by you, what content is included within the Offering, the life-cycle of any software in the Offering, support options with respect to the Offering, and how Customers can obtain and use the Offering with Azure.

(d) Terms for Publisher Marks. During the term of this Agreement you hereby grant us a non-exclusive, royalty-free, personal license to display your trademarks and logos (“Publisher Marks”), as provided to us through the Publishing Portal or otherwise, in connection with the marketing and promotion of your Offerings or the Marketplace. You are the owner and/or authorized licensor of the Publisher Marks. As between the parties, all goodwill associated with the Publisher Marks shall inure to your benefit. We may reformat or resize Publisher Marks as necessary and without altering the overall appearance of the Publisher Marks. You may notify us at any time if you believe that we are misusing your Publisher Marks, and we will correct such use within a reasonable time.

SECTION 4 Licensing of Offerings and Support.

(a) Licensing of Offerings. You are responsible for licensing or otherwise granting rights to your Offerings, including all Offering Contents associated therewith, to Customers. Such licenses and grants will be between you and Customers and will not create any obligations or responsibilities of any kind for Microsoft. With respect to the web-based management portal experience for the Marketplace, use of your Offerings shall be conditioned upon a “click to agree” acceptance of your Terms of Use and Privacy Statement by Customers. Microsoft may also enable Customers to purchase and access Offerings through Marketplace APIs. You acknowledge that Microsoft grants no rights or license to your Offerings through the operation of the Marketplace or through enabling you to provide your Offerings through the Marketplace.

(b) Support. You are responsible for supporting your Offerings. You will ensure that any support options described in your Listing Information remain available to Customers for as long as the relevant Offering is available in the Marketplace or is otherwise provided to Customers during any Wind-Down Period. For each Offering that you publish in the Marketplace, you must make support available to Customers, either as included within the User Fees associated with the Offering, if any, or as a support offering that may be separately purchased either through or outside of the Marketplace. You must provide commercially reasonable support to Customers for inquiries related to deployment of Offerings via the Marketplace. You must make technical and billing support contacts available to Microsoft via e-mail and telephone for notification in the event that there are any billing issues that require your response or technical problems with any Offering. If we contact you regarding a problem that requires your support, you must respond promptly and provide a resolution within a commercially reasonable period of time. You agree to work with us to identify or isolate root cause issues and fixes in necessary scenarios. Our sole obligation with respect to customer service for any Offering is to make your customer service contact information reasonably available to Customers. We reserve the right to require Customers to purchase Azure support plans before we will provide any support to Customers related to the Azure services, including root cause analysis. You will ensure that the contact information you provide in the Publishing Portal and in the Listing Information associated with each Offering remains accurate and current.

SECTION 5 Privacy.


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(a) Use of Customer Information and Customer Data. You may use Customer Data only to provide your Offering. You may use Customer Information to provide your Offering, to contact Customers to the extent permitted in Section 5(c), to prevent fraud, to provide support, or to perform statistical analysis. You may not use Customer Data or Customer Information for any other purposes unless you obtain permission from Customers for such other purposes in your Privacy Statement or otherwise.

(b) Privacy Statement. Your Privacy Statement must (i) comply with applicable laws and regulations; (ii) inform Customers about any Customer Data or Customer Information that you collect and how that information is used, stored, secured, and disclosed; and (iii) describe the controls that Customers have over the use and sharing of their Customer Data and Customer Information and how they may access their data and information. Microsoft’s privacy policies apply solely to Customers’ use of Azure services and will not apply to Customers’ use of any third-party Offering. If a Service Offering (as defined in the Participation Policies) is hosted, or if an Offering includes hosted components, you must indicate all countries in which the service may be hosted and where any Customer Data may be stored. This information must be made available in your Privacy Statement and your Listing Information to enable Customers to determine how to comply with applicable laws, regulations, or policies governing the use and transfer of their data.

(c) Communications with Customers. You may use Customer Information to contact Customers for Transactional Purposes only. You may not contact any Customer for Promotional Purposes unless the Customer has provided affirmative, opt-in consent to receive such communications from you or unless as otherwise instructed by Microsoft. Notwithstanding any other provision in this Agreement, if a Customer has purchased a Paid Offering through the Marketplace, you may not use Customer Information to attempt to directly sell the same product or service to the Customer outside of the Marketplace. This section does not restrict you from using other Customer contact information that you acquire independently outside of the Marketplace for any purpose, even if that information is identical to the Customer Information we provide to you or that you obtain through the Marketplace, provided that you do not target communications on the basis of the intended recipient being an Azure customer. “Transactional Purposes” encompasses communications directly related to the provision or operation of your Offering and includes communications about support for your Offering, service downtime, changes to your Terms of Use, billing, and notification or delivery of invoices. “Promotional Purposes” encompasses communications related to offering or advertising products or services, feedback requests, links to training or other resources, and any other communications that are not solely for Transactional Purposes. Your communications with Customers must comply with all applicable laws.

SECTION 6 User Fees, Payments, and Taxes.

(a) Appointment of Microsoft. The Marketplace is a forum through which Offerings are made available by publishers. Microsoft’s role is to provide the technology and services to enable this forum and to process the related purchases, returns, and chargebacks for you. Microsoft’s role is to provide the technology and services to enable the Marketplace. You appoint Microsoft to act as your agent or commissionaire, as applicable, for these purposes, and you acknowledge that you, not Microsoft, are the seller, provider, distributor, and licensor of your Offerings to Customers or Microsoft Resellers, as applicable.

(b) User Fees. When you submit an Offering for publication, you will designate the User Fees (if any) to be charged for use of your Offering. The Publishing Portal may direct you to designate User Fees for different Offering SKUs, geographies, currencies, or other aspects of your Offering.


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(c) Billing. For Paid Offerings, we will charge or invoice Customers or Microsoft Resellers, as applicable, on your behalf for Customers’ use of your Offering in Azure in accordance with the User Fees specified in your Listing Information (or its reasonable currency equivalent), including any discounts from promotional codes entered by Customers through the Marketplace. We may convert the User Fees associated with an Offering into a local currency or to a currency associated with a Customer’s or Microsoft Reseller’s customer agreement or reseller agreement, as applicable. Excluding BYOL Offerings, you will ensure that all fees and charges payable for use of your Offering are billed and collected through the Marketplace, and you will not offer or establish any alternative means of payment.

(d) Publisher Net Revenue. Amounts payable to you will be calculated as follows: (i) aggregate User Fees paid and actually collected from Customers or Microsoft Resellers, as applicable, for Customers’ use of your Offerings over the previous payment period, net of any applicable taxes, refunds, and chargebacks (“Publisher Net Receipts”); less (ii) a “Marketplace Service Fee” for promotion and availability of the Offerings. Our Marketplace Service Fee will be 20% of Publisher Net Receipts. As a limited exception to the foregoing, and as further described in Exhibit C, for certain Indirect Channels, we may provide you with the option of applying a discount to Microsoft Resellers in exchange for a corresponding discount in our Marketplace Service Fee. The total sum payable hereunder is referred to as “Publisher Net Revenue.” 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 Paid Offerings used by Customers during the relevant Payment Period.

(e) Payment Terms. We will pay you applicable Publisher Net Revenues within 45 days after each payment period, as specified in the Marketplace Participation Policies. If Publisher Net Revenues are less than $250.00 USD in any given payment period, we may elect to carry forward the amount owed to subsequent payment periods until the total amount owed is at least $250.00 USD. All Publisher Net Revenues shall be paid using Microsoft’s standard payment methods and in the manner you indicated during Publisher Account setup, which may include checks payable to you and sent via U.S. mail and/or ACH electronic payment to a financial institution that you designate. You must provide us (or our third-party payment processor) with all financial, tax, and banking information requested so that we can pay you under this Agreement. We are not responsible for delay, loss, 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. We may remit payment to you in the currency associated with your Publisher Account using Microsoft’s then-current conversion rates.

(f) Refunds and Offsets for Paid Offerings. If a Customer or a Microsoft Reseller contacts us to request a refund for a purchase of your Paid Offering, we will apply the same credit and refund policies that we use for our provision of Azure services. If our policies indicate that a credit or refund is due, we will proactively issue, and you authorize us to issue on your behalf, a credit or refund to the Customer or Microsoft Reseller, as applicable. If our policies do not indicate that a credit or refund is due, we may invite the Customer or Microsoft Reseller to contact you directly. You agree to inform us in the event that any Customer or Microsoft Reseller is owed a refund for your Offering. In such case, we will be solely responsible for processing any refunds through our payment system. You will not receive payment for any Offering that is sold and later refunded or subjected to a chargeback, and we may offset future payments to you if a refund or chargeback is issued for a transaction for which you previously received payment.

(g) Taxes.


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(i) Responsibility for Taxes Pertaining to Offering Purchases.

(A) Tax Calculation and Remittance. In certain countries (“Remittance Countries”), we will collect and remit sales, use, goods and services, value added, or similar taxes, if any, applicable to the sale of your Offering to Customers or to Microsoft Resellers, as applicable, in such countries through the Marketplace based on our tax profile in those countries. We make no warranty that our tax profile in any Remittance Country will be equivalent to yours or that the taxes we collect and remit in such countries will relieve you of primary liability for taxes on such sales, whether or not such taxes are separately stated by us. In any country other than the Remittance Countries (such other country an “ISV Remittance Country”), we will not remit any sales, use, goods and services, value added, or other similar tax. You are responsible for determining whether you have an obligation to register, collect, and remit taxes in any ISV Remittance Country, and you must designate the User Fees associated with your Offering as made available in such country to include any applicable taxes that you are obligated to collect and pay. For the list of Remittance Countries and to find more information about how Microsoft collects taxes in Remittance Countries, see the Marketplace Participation Policies.

(B) Exemption Certificates. Notwithstanding Section 6(g)(i)(A), we will not collect and remit tax from sales to certain Microsoft Resellers in Remittance Countries if we have deemed the sale tax-exempt. In such cases, you may be liable for taxes applicable to such sales unless you also obtain valid exemption certificates from the applicable Microsoft Resellers. Upon request, we will provide you with contact information for Microsoft Resellers who have resold your Paid Offerings, but you will be solely responsible for obtaining any necessary exemption certificates from Microsoft Resellers and for any tax liability resulting from your failure to do so.

(C) Reporting. If you choose to make Offerings available in an ISV Remittance Country, you will have sole responsibility to determine your tax obligation in such ISV Remittance Country, if any. Microsoft will provide reasonable assistance in coordinating between you and Customers in ISV Remittance Country for clarification of tax treatment upon their request.

(D) Assistance by Microsoft. Microsoft will provide reasonable assistance to you in the event you are audited by the local taxing authority.

(ii) Responsibility for All Other Taxes.

(A) General. You are solely responsible for determining your federal, state, local, foreign, and any other tax obligations in any taxing jurisdiction in connection with the transactions contemplated by this Agreement and for paying and reporting those taxes, including taxes unique to your residence and any taxes related to Publisher Net Revenue that you may receive under this Agreement. In the event that any price payable by any Customer or Microsoft Reseller for any Offering is subject to (1) any withholding or similar tax; or (2) any sales, use, goods and services, value added, or other tax or levy not collected by Microsoft; or (3) any other tax or other government levy of whatever nature, the full amount of that tax or levy shall be solely for your account, and shall not reduce the Marketplace Service Fee to which Microsoft is entitled.


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(B) Taxes on the Marketplace Service Fee. If we are required to collect any sales, use, goods or services, value-added, or similar taxes in connection with your payment of the Marketplace Service Fee, we may deduct and retain the amount of such taxes from amounts otherwise due to you and remit them to the applicable taxing authority.

(C) Taxes withheld by Microsoft. If Microsoft is required to withhold any taxes, Microsoft will deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority and will secure and deliver to you an official receipt or other evidence of payment for any taxes withheld. We will use reasonable efforts to minimize such taxes to the extent permissible under applicable law, and both parties will reasonably cooperate with each other to obtain the lowest tax rates or elimination of such taxes. 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, (i) you hereby represent and warrant that your services are not performed in the U.S.; or (ii) you must notify Microsoft by sending an email to [email protected] that your services are not performed in the U.S.

SECTION 7 Removal and Termination of Offerings or Offering Contents.

(a) Removal. Removal of an Offering or Offering Content will result in the Offering and/or Offering Content no longer being visible in the Marketplace or available for new Customers to purchase or deploy. However, existing Customers will be able to continue to use the Offering and Offering Content to the same extent as prior to removal. Unless the Offering is terminated, we will continue to bill Customers or Microsoft Resellers, as applicable, on your behalf for such continued use in Azure in accordance with Section 6 at the User Fees designated for your Offering prior to removal. You will solely select and control the Offering and Offering Content. You must comply with the applicable content guidelines. Third parties or governments may claim that Offering or Offering Content must be changed or removed. If we receive notice of such a claim, we may refer it to you for resolution. If you receive notice of such a claim, you will promptly and professionally respond. You must also resolve the claim so as to keep in compliance with this Agreement and the law. While we are not required to review the Offering or Offering Content, we may notify you that certain content is objectionable or must be removed. If you receive such a notice, you must remove the content as soon as reasonably practicable and take all steps necessary to comply with this Agreement and the law. If you discover that your Offering or Offering Content is objectionable or illegal, you must work with Microsoft immediately to repair the Offering and/or Offering Content or remove or replace the applicable content. You must use commercially reasonable efforts to obtain for yourself and us any liability limitations or “safe harbor” clauses under applicable law. You are subject to our DMCA policies. Our DMCA policies are currently located at http://www.microsoft.com/info/cpyrtInfrg.htm.

(i) Removal by Publisher. You may request removal of an Offering or Offering Content from the Marketplace by sending a request pursuant to Section 12(b). We will remove your Offering from the Marketplace within 30 days of your request.

(ii) Removal by Microsoft. We reserve the right to remove or suspend the availability of any Offering or Offering Content from the Marketplace or immediately suspend or remove the interoperability between Microsoft Software Product and your Offering, for any reason or no reason. Reasons may include, without limitation, (A) your breach of the terms of this Agreement, which includes the Marketplace Participation Policies, the Marketplace

https://microsoft.sharepoint.com/teams/Azure_LCA_Client_Collaboration_Site/Shared%20Documents/Azure%20Third-Party%20Offerings/Publisher%20Agreement/v4/[email protected]


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Publication Guidelines, and the Microsoft Azure Certified Guidelines; (B) inconsistency between your Offering and its Listing Information; (C) an assertion or claim that your Offering or Offering Content infringes the intellectual property rights of a third party; (D) complaints about the content or quality of your Offering or Offering Content; or (E) failure to provide adequate support to Customers or to Microsoft in accordance with this Agreement.

(b) Termination of Offerings.

(i) Termination of an Offering means that we will (A) notify existing Customers that the Offering has been terminated and may no longer be used after a specific termination date and (B) cease billing Customers or Microsoft Resellers, as applicable, for any continued use of the Offering after the termination date. You agree that we will have no responsibility or liability for Customers’ unauthorized use of your Offering after the termination date.

(ii) If an Offering is terminated, existing customers will be able to continue to use the Offering for 90 days or until expiration of the term of the Customer’s subscription to your Offering, whichever is longer (“Wind-Down Period”). You must continue to provide any services that are part of your Offering to each existing Customer during that Customer’s Wind-Down Period.

(iii) 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 terminate any Offering prior to completion of its Wind-Down Period, and we will not terminate any non-Service Offering during the term of this Agreement.

(iv) Upon Termination of an Offering that interoperates with a Microsoft Software Product, Microsoft will cease to use the Publisher’s application programing interface (“API”) to make new connections with Customers. However, existing Customers using the integration will continue to be able to refresh their data by making calls using the Publisher API’s after the Termination of an Offering unless Publisher blocks such API calls.

SECTION 8 Confidentiality and Data Protection.

(a) Confidentiality. We will each comply with the terms of any nondisclosure agreement currently in force between us. If no such agreement exists, the recipient of Confidential Information under this Agreement will hold such information in confidence, and will not use or disclose any of the information to a third party, except contractors who are performing on the receiving party’s behalf and only subject to confidentiality terms at least as protective as this section. “Confidential Information” means all information that a party designates as confidential or a reasonable person knows or reasonably should understand to be confidential. Confidential Information does not include information that is or becomes known to the receiving party without a breach of this agreement or any other confidentiality obligation owed to a disclosing party. This section does not prohibit either party from responding to lawful requests from law enforcement authorities.

(b) Data Protection. Each party will comply with all applicable data protection and privacy legislation in connection with its performance hereunder.

SECTION 9 Warranties. You represent, warrant, and undertake to Microsoft that:


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(a) You have obtained any and all consents, approvals, and licenses (including written consents of third parties where applicable) required for you to make your Offerings available in the Marketplace;

(b) Our exercise of the rights granted by you under this Agreement will not obligate us or our Affiliates to pay any third party any amounts;

(c) Information that you provide to us under or in connection with this Agreement is true, accurate, current, and complete; and

(d) In carrying out your obligations set forth in this Agreement, you are in compliance with all applicable laws, including privacy laws and export compliance requirements.

SECTION 10 Disclaimer, Limitation of Liability, and Defense of Claims.

(a) DISCLAIMER OF WARRANTY. AS TO PUBLISHERS AND THEIR OFFERINGS, WE PROVIDE THE AZURE SERVICES AND THE MARKETPLACE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF PUBLISHING YOUR OFFERINGS THROUGH THE MARKETPLACE FOR USE BY CUSTOMERS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT RELATING TO THE AZURE SERVICES AND THE MARKETPLACE. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES THAT ACCESS TO, OR USE OF, THE AZURE SERVICES OR THE MARKETPLACE WILL BE UNINTERRUPTED OR ERROR FREE.

(b) LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 10(d), EACH PARTY’S AND ITS AFFILIATES’ LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES UP TO THE TOTAL MARKETPLACE SERVICE FEES RECEIVED BY MICROSOFT DURING THE PREVIOUS TWELVE (12) MONTHS OR $5,000, WHICHEVER IS GREATER. EACH PARTY AGREES NOT TO SEEK, AND EACH PARTY EXPRESSLY WAIVES, ANY RIGHT TO RECOVER ANY OTHER LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, OR INCIDENTAL DAMAGES. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU IF YOUR STATE OR COUNTRY DOES NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES.

(c) Scope. For clarity, the disclaimer and limitation of liability provisions in this Section 10 pertain to you solely in your capacity as a publisher in the Marketplace. Neither the foregoing provisions nor any other provisions in this Agreement are intended to apply to your use of any Azure services in your capacity as an Azure customer, if applicable.

(d) Duty to Defend. You agree to defend, indemnify, and hold harmless us and our Affiliates, as applicable, from and against (including by paying any associated costs, losses, damages, expenses, and attorneys’ fees) any and all third-party claims:

(i) alleging that your Offering or Listing Information infringes any proprietary or personal right of a third party;

(ii) arising from any dispute between you and a Customer relating to your Offering;

(iii) arising from your use, modification, or distribution of Microsoft Software Products in


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violation of Exhibit B; or

(iv) based on your failure to collect, remit, or report any sales, use, goods and services, value added, or other similar tax that you are obligated to collect, remit, or report, including any associated penalties and interest.

We will (A) notify you promptly in writing of the claim, provided that our failure to notify you will not relieve you of any liability 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 agree to reimburse us or our Affiliates, as applicable, for any reasonable out-of-pocket expenses incurred in providing such assistance. You may not make any settlement or compromise of a claim, or admit or stipulate any fault or liability on the part of us or our Affiliates with respect to any claim covered by this section without our express, prior written consent.

SECTION 11 Term and Termination.

(a) General. 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, we will remove all of your Offerings from the Marketplace and terminate each Paid Offering, subject to any applicable Wind-Down Periods as specified in Section 7(b)(ii). We reserve the right to remove and/or terminate your Offerings on an expedited basis if we terminate this Agreement for material breach. Sections of this Agreement that, by their terms, require performance or establish rights or protections after the termination or expiration of this Agreement will survive.

SECTION 12 Miscellaneous.

(a) Affiliates. We may perform certain of our obligations under this Agreement through one or more Microsoft Affiliates. We may appoint one or more of our Affiliates, which may further appoint our Affiliates, to act as our agents in different regions.

(b) Notices. All notices that you provide to us under this Agreement must be sent to the following email alias: [email protected]. We may disclose your contact information as necessary for us to administer this Agreement through our Affiliates and other parties that help us administer this Agreement.

(c) Reservation of Rights. Except as expressly provided, nothing in this Agreement transfers, conveys, or grants any right, title, or interest in any software or other materials exchanged by the parties. Each party reserves all rights not expressly granted.

(d) No Exclusivity. Each party acknowledges and agrees that the rights granted to and obligations due to the other party in this Agreement are intended to be non-exclusive and therefore that nothing in this Agreement will be deemed or construed to prohibit either party from engaging in or participating itself or with one or more third parties in business arrangements similar to or competitive with those described herein.

(e) Contracting Party, Jurisdiction and Governing Law.

mailto:[email protected]


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(i) If your primary headquarters is located outside of New Zealand: (a) you are contracting with Microsoft Corporation, located at One Microsoft Way, Redmond, WA 98052, USA; (b) this Agreement will be governed by the laws of the State of Washington, excluding its conflicts of laws, of the United States of America; and (c) you irrevocably agree that all claims brought relating to this Agreement will be brought exclusively in the federal courts in King County, Washington, unless no federal subject matter jurisdiction exists, in which case the parties consent to exclusive jurisdiction and venue in the Washington State courts in King County, Washington.

(ii) If your primary headquarters is located in New Zealand: (a) you are contracting with Microsoft Regional Sales Corporation, located at 438B Alexandra Road #04-09/12 Block B, Alexandra Technopark Singapore 119968; (b) this Agreement is governed by the laws of Singapore, which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles; and (c) you irrevocably consent to the exclusive jurisdiction and venue of the courts in Singapore.

(iii) The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.

(f) Export compliance. Your Offering may be subject to United States. and other countries' technology control or export laws and regulations. You must comply with all applicable international and domestic laws, including the U.S. Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations, Office of Foreign Assets Control sanctions programs, and end-user, end use and destination restrictions by U.S. and other governments, that apply to your Offering and to your Export Control Classification Number, if your Offering is subject to the EAR.

(g) Costs. Each party is solely responsible for all costs and expenses incurred by it in connection with its performance of this Agreement.

(h) Responding to Claims. If we receive a claim from a third party requesting that your Offering be changed or removed, we may refer that claim to you. You must comply with the notice as soon as reasonably practicable, together with any other requirements in Microsoft's Notice and Takedown policies at https://www.microsoft.com/info/cpyrtInfrg.aspx. If you discover that your Offering violates the terms of this Agreement, you must immediately notify us and work with us to cure the violation.

(i) Waiver. Either party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.

(j) Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.

(k) Assignment. Neither party may assign this Agreement (or any rights or duties under it) without the other party’s prior written consent, provided that either party may assign this Agreement without the other party’s consent (i) to an Affiliate or (ii) in connection with a merger, acquisition, or sale of all or substantially all of its assets. Either party who assigns this Agreement as permitted in this Section 12(j) shall provide the other party with prompt notice of such assignment. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

https://www.microsoft.com/info/cpyrtInfrg.aspx


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(l) Subcontractors. We may sublicense our rights under this Agreement to third parties or otherwise authorize third parties to assist us in performing our obligations or exercising our rights under this Agreement. We will, subject to the terms of this Agreement, be responsible for the performance of such third parties.

(m) English Language. The parties intend for this Agreement to be written and interpreted solely in English. Any notices required or provided under this Agreement will be in English. In the event of any conflict between the English version of this Agreement or any notices and a translation of the same, the English version will prevail.

(n) Force Majeure. Neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event, including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, or other causes beyond the reasonable control of the party seeking recourse under this Section 12(m). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use reasonable efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event ends. Lack of funds will not constitute an event of force majeure.

(o) Relationship of Parties. Neither this Agreement, nor any terms and conditions contained herein, create a partnership, joint venture, employment relationship, or franchise relationship.

(p) Updates. We may update this Agreement from time to time. If we update this Agreement, we will indicate the last date on which the Agreement was modified at the top of the Agreement and provide you with 30 days’ notice prior to the effective date of the updated version of the Agreement. By continuing to make Offerings available in the Marketplace after such notice period, you agree to be bound by the terms and conditions contained in the updated Agreement. The foregoing notice period will not apply to updates to the Marketplace Publication Guidelines, the Microsoft Azure Certified Guidelines, or the Marketplace Participation Policies, which we may update at any time. In the event of a conflict between the terms of this document and the terms of the Marketplace Publication Guidelines, the Microsoft Azure Certified Guidelines, or the Marketplace Participation Policies, this document will control.

(q) Entire Agreement. This Agreement (including its Exhibits) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications.


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EXHIBIT A Terms Applicable to Specific Categories of Offerings

SECTION 1 Virtual Machine Images (“Images”).

(a) Base Images. If you base any Image Offering on another Microsoft or other publisher Image available in the Marketplace (a “Base Image”), you are responsible for obtaining any necessary permissions from the owner and/or publisher of the Base Image prior to publishing your Image Offering.

(b) User Fees and Publisher Net Revenue.

(i) New Virtual Machine Sizes. For Image Offerings, you will be directed to designate User Fees based on virtual machine sizes available in Azure at the time of your publication request. Following publication of your Image Offering, 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 thirty (30) days to designate User Fees for the new virtual machine size. Failure to designate pricing within such time will constitute your designation of User Fees for the new virtual machine size equal to the highest rate then in effect for your Image Offering in the same currency.

(ii) Metering. We will meter Customers’ use of virtual machines deployed from your Image in Azure by inserting, or enabling you to insert, one or more Billing Tags into your Image. A “Billing Tag” is a digital tag inserted within a designated byte offset in an Image that enables Azure to meter usage of virtual machines deployed from the Image. You may not insert Billing Tags into any Image or remove Billing Tags from any Base Image except as authorized or instructed by us. You may not insert Billing Tags that you receive from us into Images that you make available through other channels outside of the Marketplace.

(iii) Limitations. We are not able to meter, and are not responsible for collecting User Fees associated with, Customers’ use of Images that were not properly embedded with, or that otherwise cease to contain, appropriate Billing Tags. In addition, the Marketplace does not currently support the ability to charge User Fees in connection with Customers’ use of data disks associated with Image Offerings. We are not able to meter, and are not responsible for collecting User Fees associated with, Customers’ use of Images outside of Azure. Should you wish to restrict Customers’ use of your Images outside of Azure, you are responsible for including appropriate restrictions in your Terms of Use.

(iv) Excluded Use. We may deploy your Image Offerings within a Microsoft-owned Azure subscription for a limited time for onboarding, testing, troubleshooting, support, demonstration, or other similar purposes. You agree that any such use of your Image Offerings by us in this manner (A) does not create a customer relationship between you; (B) does not constitute our acceptance of your Terms of Use or Privacy Statement; and (C) shall not incur User Fees.

SECTION 2 VM Extensions.

Any software or other data installed by your VM Extension, even if retrieved from an external location, is considered Offering Contents for purposes of this Agreement. You will be responsible, and must provide support to Customers, for any VM Extension handlers associated with your VM Extension Offerings.


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SECTION 3 Services.

For certain types of Service Offerings, as described in the Marketplace Publisher Participation Policies, if your Service Offering includes usage-based billing User Fees, you are responsible for metering Customers’ use of your Service Offering and reporting such usage to us on a periodic basis not to exceed 24 hours. We will provide you with one or more manual or automated mechanisms to report such usage information to us. We reserve the right not to collect User Fees for any usage information provided more than 24 hours after the close of any billing cycle. You are also responsible for notifying us and requesting correction of any erroneous usage information previously submitted. If you notify us that usage information you previously submitted was incorrect, we will attempt to correct over-billing errors at any time, where feasible, but we will not correct under-billing errors for Customers whose billing cycles have already closed. We reserve the right to suspend your Service Offering if (i) you repeatedly fail to submit usage information on a timely basis; or (ii) you repeatedly submit erroneous usage information or request billing corrections.

SECTION 4 Web Applications.

We may enable Customers to download and use Web Applications in their on-premises or hybrid cloud environments. You agree that Customers’ acceptance of your Terms of Use for a Web Application Offering will entitle them to use such Web Application both in Azure and on their premises.

SECTION 5 ARM Templates.

If you publish an ARM Template that references another publisher’s Offering (a “Third-Party Offering”), you may not represent yourself as the publisher of the Third-Party Offering. You also acknowledge and agree that other publishers may reference your Offerings in their ARM Templates in a manner consistent with this Agreement. Notwithstanding any inclusion of your Offering in another publisher’s ARM Template, you will remain the publisher of your Offering for all Customer deployments of the ARM Template, your Terms of Use and Privacy Statement 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 Offering.

SECTION 6 Offerings for use in Customers' on-premises environment

If you choose to make an Offering available for use in a non-virtual machine setting, we may enable Customers to download and use such Offerings in their on-premises environments. You agree that Customers’ acceptance of your Terms of Use for such Offerings will entitle them to use such Offering in their on-premises environments. You acknowledge that you, not Microsoft, are the distributor of such Offering.


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EXHIBIT B Inclusion of Microsoft Software Products

In some cases, Microsoft provides publishers with the ability to publish Image Offerings that include one or more of the Microsoft software products set forth in the Marketplace Participation Policies (“Microsoft Software Products”). If we approve your request to publish an Image Offering that includes one or more Microsoft Software Products, we grant you the right to include copies of the Microsoft Software Products in your Image subject to the following terms.

SECTION 1 Image Creation.

(a) Base Image. You must create your Image using a Microsoft-published Base Image from the Marketplace that consists of the same Microsoft Software Products that you have been authorized to include in your Image Offering. You may not publish an Image that includes copies of Microsoft Software Products that you obtained elsewhere, whether from Microsoft or from a 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 on-premises use.

(b) 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 Offering Contents. 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 of Microsoft’s names, logos, or trademarks.

(c) 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.

SECTION 2 Distribution and Licensing.

(a) Appointment. You may make the Microsoft Software Products included within your approved Image available to Customers through the Marketplace on our behalf. You may not make the Microsoft Software Products available through any other channels.

(b) Licensing of Microsoft Software Products. Microsoft alone shall be the licensor of any Microsoft Software Products included within your Image, and any use by Customers of such Microsoft Software Products shall be 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 Offering Contents within the Image and not to any Microsoft Software Products within the Image; (ii) Microsoft is the licensor of any Microsoft


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Software Products within the Image; and (iii) the Customer’s use of any Microsoft Software Products within the Image shall be governed by Microsoft’s license terms.

SECTION 3 Notice of Recall.

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 Offerings that include the impacted Microsoft Software Product from the Marketplace within ten (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.

SECTION 4 Termination.

Upon termination of this Agreement or removal of your Image Offering from the Marketplace, your rights under this Exhibit B will automatically terminate and you must destroy all copies of Microsoft Software Products obtained under this Exhibit B.

SECTION 5 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.

SECTION 6 Miscellaneous.

(a) 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 Offering.

(b) 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 http://www.microsoft.com/exporting.

http://www.microsoft.com/exporting


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EXHIBIT C Availability of Offerings in Indirect Channels

(a) Microsoft Resellers. If Customers in Indirect Channels use your Paid Offerings, your sale of the Paid Offerings will be to the applicable Microsoft Resellers and not directly to the Customers. We will bill the Microsoft Resellers, as your agent or commissionaire, for their Customers’ use of your Paid Offerings according to the User Fees you have established for the Offerings. Microsoft Resellers will be responsible for setting the prices at which they resell your Paid Offerings to their Customers (or to other Microsoft Resellers) and for collecting such amounts from their Customers (or Microsoft Resellers). The prices at which Microsoft Resellers resell your Paid Offerings will not affect the User Fees that are charged to Microsoft Resellers for their Customers’ use of your Offerings, and Microsoft Resellers will not be entitled to collect any Marketplace Service Fee in connection with their resale of your Offerings. Microsoft Resellers, however, will be entitled to retain any markup of your Paid Offerings as compensation for making your Offerings available in Indirect Channels.

(b) Consent to Resell. By publishing an Offering in the Marketplace, you consent to having your Offering resold by Microsoft Resellers to Customers (or to other Microsoft Resellers) in any associated Indirect Channels at resale prices established by such Microsoft Resellers in their discretion. If you do not wish to allow an Offering to be resold by Microsoft Resellers in a particular country, you may make your Offering unavailable for purchase in such country. Removal of an Offering in any country will apply to both Indirect Channel sales and sales directly to Customers.

(c) Discounts and Marketplace Service Fee. We will continue to collect a Marketplace Service Fee of 20% of Publisher Net Receipts received from Microsoft Resellers. As a limited exception to the foregoing, to encourage Microsoft Resellers to market and sell your Offerings, we may provide you with the option of discounting the User Fees charged to Microsoft Resellers in certain Indirect Channels in exchange for a reduction in our Marketplace Service Fee. For example, in the Publishing Portal, we may provide you with the option of applying a 20% discount to your User Fees charged to Microsoft Resellers in exchange for a 100% reduction to (or removal of) our Marketplace Service Fee. In this example, if you published a paid Image Offering with non-discounted hourly User Fees of $1.00, we would (i) charge direct Customers $1.00 in User Fees for their use of your Image Offering, retain $0.20 as a Marketplace Service Fee (i.e., 20%), and remit $0.80 in Publisher Net Revenue; and (ii) charge Microsoft Resellers in certain Indirect Channels $0.80 in discounted User Fees for their Customers’ use of your Image Offering, retain $0.00 as a Marketplace Service Fee (i.e., 0%), and remit $0.80 in Publisher Net Revenue, in each case assuming that all amounts charged were collected from Customers and Microsoft Resellers, as applicable.

(d) Licensing of Offerings. Notwithstanding the lack of direct sale between you and Customers in Indirect Channels, your Terms of Use and Privacy Statement shall be solely between you and such Customers, and all terms applicable to Customers in this Agreement shall pertain to Customers in Indirect Channels.

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