Posted: October 2012
Effective: October 2012
IF YOU LIVE IN THE UNITED STATES, SECTION 4 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH MICROSOFT. PLEASE READ IT.
Thank you for choosing Microsoft! This is an agreement between you and Microsoft Corporation (or based on where you live one of its affiliates) that describes your rights to use the software and services identified in Section 1.1 below. For your convenience, we have phrased some of the terms of this Agreement in a question and answer format. You should review the entire Agreement, including any linked terms, because all of the terms are important and together create this Agreement that applies to you.
Please note we do not provide warranties for the Services. This Agreement also limits our liability. These terms are in Sections 8 and 9. We ask that you read them carefully.
1. Scope of Agreement, Acceptance, and Changes
1.1. What services are covered by this Agreement? This Agreement applies to your use of the Xbox services, including Xbox LIVE, Zune, Games for Windows-LIVE, Xbox Music, and Windows Phone Store/Marketplace (including any store provided under the brand of a Windows Phone partner that links to this Agreement) including services or software that allow you to stream, download, view or use certain digital content such as music, video, games, applications and other content that Microsoft makes available from time to time (the "Services"). The Services may be accessed from the Xbox 360 console, a personal computer, a Windows Phone device, portable media player, other devices authorized by Microsoft (each an "Authorized Device"), or online.
1.3. Are there any third-party terms for using the Services or content accessed through the Services? Certain third-party games, applications, content, online services, advertising, or events (for example, sweepstakes and tournaments) that are available in or through the Services ("Third-Party Features") may provide separate agreements, privacy policies and other terms that govern your use of those Third-Party Features (collectively "Additional Terms").
We will identify the provider of each application available in the Windows Phone Store/Marketplace. The Standard Application License Terms at the end of this Agreement are the Additional Terms that apply to your use of those applications unless an application provides you with separate Additional Terms that apply instead.
Microsoft is a party to Additional Terms only when Microsoft is the provider of an application in the Windows Phone Store/Marketplace. Microsoft does not license any intellectual property to you as part of any Third-Party Features made available through the Services and we are not responsible, unless otherwise required by law, for:
• the Third-Party Features;
• your use of the Third-Party Features;
• the content of the Third-Party Features;
• customer support for the Third-Party Features; or
• any warranties or claims relating to the Third-Party Features.
This Agreement and privacy statements referenced in this Agreement do not apply to Third-Party Features and the Additional Terms governing such features do not modify any terms of this Agreement in any way.
1.6. Can Microsoft change this Agreement after I have accepted it? Yes. From time to time, Microsoft may change or amend this Agreement. If we do, we'll indicate the date on which this Agreement was last updated at the top of the most current version. Your use of the Services after the date the change becomes effective will be your consent to the changed terms, except that Section 4.7 permits you to reject changes to Section 4 (arbitration agreement) within 30 days of the change. If you do not agree to the changes, you must stop using the Services and cancel any paid Services by following the instructions in Section 6.10 below, except for arbitration changes you reject under Section 4.7. Otherwise, the new terms will apply to you.
1.7. Can Microsoft change the Services or my use of it? We may change the Services at any time, for any reason or no reason, and we may also cancel or suspend your ability to access the Services if you're in breach of this Agreement. If we cancel your Services account or your credentials, your right to use the Services stops immediately, but you're still required to pay all charges already incurred through that account.
1.8. What types of changes can I expect to the Services? We continuously work to improve the Services. We may stop providing a portion of the Services, because, for example, it is no longer feasible for us to provide it, the technology advances, customer feedback suggests a change, external issues arise that make it imprudent or impractical to continue, or for other reasons. We may release the Services or their features in beta version, which may not work correctly or in the way the final version may work. We may, among other things: (i) restrict or limit access to the Services; (ii) retrieve information from the Authorized Device and any connected peripheral device used to log onto the Services as necessary to operate and protect the security of the Services, and to enforce this Agreement; and (iii) upgrade, modify, withdraw, suspend, or discontinue any functionality or feature of the Services, or any hardware or software associated with the Services or with an Authorized Device, from time to time without notice. We may do so by the automatic download of related software directly to your Authorized Device, including software that prevents you from accessing the Services, playing pirated games, or using unauthorized hardware peripheral devices.
1.9. What type of support do you offer for the Services? We do not offer customer support for the Services unless provided otherwise in this Agreement or the materials we publish in connection with a particular component of the Services. For more information on customer support, please go to http://www.xbox.com/support or http://www.windowsphone.com.
1.10. How can I use the Services? You agree that the Services are only for your personal use, and you will not use the Services, any content available on the Services, or your account, for any commercial purpose. You may only access the Services with an Authorized Device or by logging into your account online. You may be unable to use the Services outside the country associated with your account ("Territory"). You may not sell, assign, or otherwise transfer your account to another person. You must keep your accounts and passwords confidential and not authorize any third party to access or use the Services on your behalf unless we provide an approved mechanism. You must contact Customer Support immediately if you suspect misuse of your accounts or any security breach in the Services.
Any software or content (e.g., text, images, video, graphics, music, sound, or games) (for purposes of this section, we refer to all of these, as applicable, as "Software") that Microsoft provides as part of the Services is licensed and not sold and is licensed according to the terms of this Agreement unless separate license terms are provided or referenced. We may automatically download Software upgrades to your Authorized Device to update, enhance, protect, or further develop the Services. We reserve all other rights not expressly granted in this Agreement. The Software license ends when your Services end unless we notify you otherwise. You must then uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
Microsoft products and services are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the products and services. These laws include restrictions on destinations, end users and end use. For additional information, see http://www.microsoft.com/exporting.
If you use the Software to access content that has been protected with Microsoft Digital Rights Management (DRM), the Software may automatically request media usage rights from an online rights server and download and install DRM updates in order to let you play the content. See the DRM information in the Microsoft Silverlight Privacy Statement (http://go.microsoft.com/fwlink/?LinkId=178857) for more information.
1.11. How can associated accounts be used? For some parts of the Services, you may be able to set up additional accounts that are dependent on your account ("associated accounts"). You are responsible for all activity that takes place with your Services account and any associated accounts. We may limit who may use your Services account or any associated accounts or the number of devices from which you may access the Services.
If you allow or enable a minor to use an associated account, then:
• You represent that you are the parent or legal guardian of such minor;
• You acknowledge that some features of the Services, and some content available through the Services, may contain or expose users to material unsuitable for minors. You agree to supervise usage by minors whom you permit or enable to use the Services. The Services are not intended for use by children under 13 without adult supervision;
• You acknowledge that we offer "Parental Controls" to help you restrict purchases and limit access to material that may be unsuitable for minors. For example, we offer "Family Settings" on the Xbox 360 console and for some components of the Services. You may view or revise your Parental Controls by logging into your account on http://www.xbox.com. Additional information about Parental Controls is available at http://www.xbox.com/support; and
• You are responsible for any material that a user of your Services account accesses or is denied access to (including as a result of your use or non-use of Parental Controls). You acknowledge that use of Parental Controls is not a substitute for your personal supervision of minors that use your Services account.
If you use an associated account, you acknowledge that the holder of the Services account has full control over your associated account. This control includes the right to: (i) end the Services; (ii) close or alter your associated account at any time; (iii) access and modify Parental Controls for your associated account; and (iv) receive notices from us. In some cases, this control also includes the control of purchasing options from your associated account and the ability to request and receive device and Services usage information related to your associated account. We collect profile, usage and activity data related to your associated account and deliver it to the Services account holder. If you are an associated account user, this Agreement applies to your use of the Services, except for the following Sections: 1.11 (excluding this paragraph beginning "If you use an associated account … ," which applies to associated account users); 6 (Payment); and Section 5.5 (Notices to Parties).
1.12. Are there things I can't do on the Services? You must not use the Services to harm others or the Services. For example, you must not:
· use the Services to harm, threaten, or harass another person, organization, or Microsoft;
· damage, disable, overburden, or impair the Services (or any network or Authorized Device connected to the Services);
· resell or redistribute any part of the Services or access to the Services, including the sale or purchase of an account and/or Microsoft Points;
· use or attempt to use any unauthorized means to modify, reroute, or gain access to the Services;
· use any automated process or service (such as a bot, a spider, periodic caching of information stored by Microsoft, or metasearching) to access or use the Services, or to copy or scrape data from the Services;
· obtain (or try to obtain) any data from the Services or related hardware, except the data that we intend to make available to you; or
· use the Services or related hardware to design, develop, or update unauthorized software.
You can't use unauthorized software or hardware to access the Services, nor can you modify an Authorized Device in any unauthorized way (e.g., through unauthorized repairs, unauthorized upgrades, or unauthorized downloads). You agree that we have the right to send data, applications or other content to any software or hardware that you are using to access the Services for the purpose of detecting an unauthorized modification and/or disabling the modified device.
You must not attempt to disassemble, decompile, create derivative works of, reverse engineer, modify, further sublicense, distribute, or use for other purposes the Services, any game, application, or other content available or accessible through the Services, or any hardware associated with the Services or with an Authorized Device. If you do, we may cancel your account and your ability to access the Services, and pursue other legal remedies. We may take any legal action we deem appropriate against users who violate our systems or network security, this Agreement or any additional terms incorporated or referenced in it. Such users may also incur criminal or civil liability.
2.1. Who owns the content that I put on the Services? We do not claim ownership of the content you provide on the Services. Your content remains your content. We do not control, verify, or endorse the content that you and others make available on the Services.
2.2. Who can access my content? You control who may access your content. If you share content in public areas of the Services or in shared areas available to others you have chosen, then anyone you have shared content with may use that content. When you give others access to your content on the Services, you grant them free, nonexclusive permission to use, reproduce, distribute, display, transmit, and communicate to the public the content solely in connection with the Services and other products and services made available by Microsoft. If the submission is a photograph or other digital image, you also expressly waive any and all rights of privacy and publicity with respect to the image. If you do not want others to have those rights, do not use the Services to share your content.
2.3. What does Microsoft do with my content? You understand that Microsoft may need, and you hereby grant to Microsoft and its affiliates, resellers, distributors, service providers, partners, and/or suppliers the right, to use, modify, adapt, reproduce, distribute, publish and display content posted on the Services. These include your name, gamertag, motto, avatar, or other information you supply in connection with the content. These rights apply solely to the extent necessary to provide the Services.
2.4. What type of content is not permitted or restricted? Content that violates this Agreement (which includes the Microsoft Anti-Spam Policy and the Code of Conduct) or your local law is not permitted on the Services. Microsoft reserves the right to review content for the purpose of enforcing this Agreement. Microsoft may block or otherwise prevent delivery of any type of email, instant message, or other communication to or from the Services as part of our effort to protect the Services or our customers, or otherwise enforce this Agreement. You must respect the rights of artists, authors, inventors and creators. Content may be protected by copyright. People appearing in content may have a right to control the use of their images. If you share content on the Services in a way that infringes others' copyrights, other intellectual property or proprietary rights, or publicity or privacy rights, you are breaching this Agreement (and violating other rights and possibly the law). You represent and warrant that you have all the rights necessary for you to grant the rights in this section and that the use of the content does not violate any law. We will not pay you for your content. We may refuse to publish your content for any or no reason. We may remove your content from the Services at any time and for any reason, including if: (i) you breach this Agreement; (ii) the content exceeds limits on storage or file size; (iii) the content is provided in an attempt to manipulate ratings or rankings for any application in the Windows Phone Store/Marketplace; or (iv) we cancel or suspend the Services.
2.5. What limitations apply to my access and use of Microsoft and third-party content? We may disable access to Microsoft and third-party content associated with your account for any reason. We may also remove or disable copies of applications on your Authorized Device in order to protect the Services, application providers, network operators or any other affected or potentially affected parties. Some content and applications available on the Services may be unavailable from time to time or may only be offered for a limited time due to contractual or other limitations, such as the Territory of your Account. As such, you may not be able to re-download content or applications or re-stream certain content that you have purchased; for example, if you change your account to another Territory you may need to re-purchase content or applications that were available to you and paid for in your previous Territory. Except to the extent required by applicable law, we have no obligation to provide a re-download or replacement of any content or application previously purchased. If we receive information from the content owners indicating the dates their content will be unavailable, we will try to share this information with you.
2.6. Who is responsible for the data and content? You are responsible for backing up the data and content that you store on the Services. We may permanently delete your data from our servers if the Services are suspended or canceled. We do not have any obligation to return data to you after the Services are suspended or canceled. If data is stored with an expiration date, we may also delete the data as of that date. Deleted data may be irretrievable.
Your privacy is important to us. We collect certain information about you to operate and provide the Services. We may also automatically upload information about your computer, your use of the Services, and Services' performance as part of the Services. We use and protect that information as described in the Privacy Statement available at http://go.microsoft.com/fwlink/?LinkID=259655 and the Windows Phone Privacy Statement available at http://go.microsoft.com/fwlink/?LinkID=247437, and their successors. In particular, we may access or disclose information about you, including the content of your communications, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Microsoft or our customers, including the enforcement of our agreements or policies governing your use of the Services; and (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Microsoft employees, customers, or the public.
We may use technology or other means to protect the Services, protect our customers, or stop you from breaching this Agreement. These means may include, for example, filtering to stop spam or increase security. These means may interfere with your use of the Services and hinder or interrupt your use of the Services. We reserve the right to enforce and verify compliance with any part of this Agreement. This includes Microsoft's right to cooperate with any legal process relating to your use of the Services, and a third-party claim that your use of the Services is unlawful or infringes such third party's rights.
Personal information collected by Microsoft may be stored and processed in the United States or any other country or region in which Microsoft or its affiliates, subsidiaries, or service providers maintain facilities. You consent to any such transfer of information outside of your country or region. Microsoft abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union, European Economic Area and Switzerland.
We may collect certain information about the Services' performance, your Authorized Device, and your use of the Services and Authorized Device to provide you the Services and improve the Services and Authorized Devices. We may automatically upload this information from your Authorized Device. Such data may include Xbox console hardware and operating performance data, unique identifiers on game discs, network performance data, and Services quality data. If you use the Xbox console with Kinect, we may also collect data about the way in which you interact with the console and the Services to improve Microsoft products and services. Any software or hardware errors that occur while you are connected to the Services or are offline may be uploaded and reported. All such data may be stored with the Xbox console's unique identifier, and may be associated with personally identifiable information. You may read about this data collection in more detail in the Privacy Statement at http://go.microsoft.com/fwlink/?LinkID=259655.
4. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN THE UNITED STATES
This section applies to any dispute EXCEPT IT DOES NOT INCLUDE A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, MICROSOFT'S, OR EITHER OF OUR LICENSORS' INTELLECTUAL PROPERTY RIGHTS. Dispute means any dispute, action, or other controversy between you and Microsoft concerning the Services (including their price) or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. "Dispute" will be given the broadest possible meaning allowable under law.
4.1. Notice of Dispute. In the event of a dispute, you or Microsoft must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399. A form is available at http://go.microsoft.com/fwlink/?linkid=245499. Microsoft will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your e-mail address. You and Microsoft will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, you or Microsoft may commence arbitration.
4.2. Small Claims Court. You may also litigate any dispute in small claims court in your county of residence or King County, Washington, if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not you negotiated informally first.
4.3. BINDING ARBITRATION. IF YOU AND MICROSOFT DO NOT RESOLVE ANY DISPUTE BY INFORMAL NEGOTIATION OR IN SMALL CLAIMS COURT, ANY EFFORT TO RESOLVE THE DISPUTE WILL BE CONDUCTED EXCLUSIVELY BY BINDING ARBITRATION. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator's award.
4.4. CLASS ACTION WAIVER. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Microsoft will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
4.5. Arbitration Procedure, Costs, Fees and Incentives. Any arbitration will be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and in many cases its Supplementary Procedures for Consumer-Related Disputes. For more information, see www.adr.org or call 1-800-778-7879. In a dispute involving $75,000 or less, Microsoft will promptly reimburse your filing fees and pay the AAA's and arbitrator's fees. You and Microsoft agree to the terms governing procedures, fees and incentives at http://go.microsoft.com/fwlink/?LinkId=265750. To commence arbitration, submit the form available at http://go.microsoft.com/fwlink/?linkid=245497 to the AAA. You agree to commence arbitration only in your county of residence or in King County, Washington. Microsoft agrees to commence arbitration only in your county of residence.
4.6. Claims and Disputes Must Be Filed Within One Year. To the extent permitted by law, any claim or dispute relating to this Agreement or the Services must be filed within one year in small claims court (Section 4.2), an arbitration proceeding (Section 4.3), or in court if Section 4 permits the dispute to be filed in court instead of arbitration. The one-year period begins on the date when the claim or dispute first could be filed. Any claim or dispute that is not filed in an arbitration proceeding or court within that time is permanently barred. This section applies to you and your successors and assigns. It also applies to us and our successors and assigns.
4.7. Rejecting Future Arbitration Changes. You may reject any change Microsoft makes to Section 4 (other than address changes) by sending us notice within 30 days of the change by U.S. Mail to the address in Section 4.1. If you do, the most recent version of Section 4 before the change you rejected will apply.
4.8. Severability. If the class action waiver in Section 4.4 is found to be illegal or unenforceable as to all or some parts of a dispute, then Section 4 will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of Section 4 is found to be illegal or unenforceable, that provision will be severed with the remainder of Section 4 remaining in full force and effect.
5. General Legal Terms
5.1. Interpreting the Agreement. This is the entire contract between you and us regarding your use of the Services. It supersedes any prior agreements between you and Microsoft regarding your use of the Services. All parts of this Agreement apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this Agreement as written. If this happens, we will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this Agreement won't change. Section 4.8 says what happens if parts of Section 4 (arbitration and class action waiver) are found to be illegal or unenforceable. Section 4 prevails over this Section 5.1 if inconsistent with it.
5.2. Assignment and Transfer. We may assign this Agreement, in whole or in part, at any time without notice to you. You may not assign this Agreement or transfer any rights to use the Services.
5.3. No Third-Party Beneficiaries; Microsoft Affiliates. This Agreement is solely for your and our benefit, except for certain sections of this Agreement that are for the benefit of Microsoft's affiliates and owners of content available through the Services. As a result, Microsoft's affiliates and owners of content available through the Services are entitled to enforce this Agreement. Except as stated above, this Agreement does not create any enforceable rights by anyone other than you and Microsoft's affiliates, successors, and assigns.
5.4. No Waiver. We enforce this Agreement, the Code of Conduct and other user content and conduct rules set forth in this Agreement, and exercise our rights and remedies at our sole discretion. If we fail to enforce such rules, rights, or remedies in some instances, we do not waive our right to do so in other instances. These rules do not create any private right of action for you or any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
5.5. Notices to Parties. You may notify us as stated in customer support for the Services, except you must notify us of a dispute at the address in Section 4.1. We do not accept e-mail notices. This Agreement is in electronic form. We may send you information about the Services, additional information, and information the law requires us to provide in electronic form. We may provide required information to you: (i) by e-mail at the address you specified when you signed up for the Services; (ii) by access to a Microsoft website we identify; or (iii) by access to a pre-designated Microsoft website, except that we will notify you of a dispute as provided in Section 4.1. Notices e-mailed to you will be deemed given and received when the e-mail is sent. As long as you can access and use the Services, you will be able to receive such notices. If you do not consent to receive any notices electronically, you must stop using the Services.
5.6. Survival. The provisions of Section 4 and those that by their terms apply after it ends will survive termination or cancelation of this Agreement.
6.1. Charges. If there is a charge associated with a portion of the Services or content delivered through the Services, you agree to pay that charge. The price stated for the Services excludes all applicable taxes and currency exchange settlements, unless stated otherwise. You are solely responsible for paying such taxes or other charges. We may suspend or cancel the Services if we do not receive an on-time, full payment from you. Suspension or cancelation of the Services for nonpayment could result in a loss of access to and use of your account.
6.2. Your Billing Account. To pay the charges for a service or content delivered through the Services, you will be asked to provide a payment method at the time you sign up for that service. You can access and change your billing account information and payment method on the Billing and Account Management website (https://billing.microsoft.com). Additionally, you agree to permit Microsoft to use any updated account information regarding your payment method provided by your issuing bank or the applicable payment network. You agree to keep your billing account information current at all times. Changes made to your billing account will not affect charges we submit to your billing account before we could reasonably act on your changes to your billing account.
6.3. Billing. By providing Microsoft with a payment method, you (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; (ii) authorize Microsoft to charge you for the Services or available content using your payment method; and (iii) authorize Microsoft to charge you for any paid feature of the Services that you choose to sign up for or use while this Agreement is in force. We may bill you (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription services. Also, we may charge you up to the amount you've approved, and we'll notify you in advance of any change in the amount to be charged for recurring subscription services. We may bill you at the same time for more than one of your prior billing periods for amounts that have not previously been processed.
6.4. Automatic Renewal. Provided that automatic renewals are allowed in your country, province, or state, we will inform you by email before automatically renewing your Services. Once we have informed you that the Services will be automatically renewed, we may automatically renew your Services and charge you the then current price for the renewal term. We will also remind you that we will bill your chosen payment method for the Services renewal, whether it was on file on the renewal date or provided later. We will also provide you with instructions on how you may cancel the Services. You must cancel the Services before the renewal date to avoid being billed for the renewal.
6.5. Online statement and errors. We will provide you with an online billing statement on the Billing and Account Management website (https://billing.microsoft.com), where you can view and print your statement. This is the only billing statement we provide. IT IS YOUR RESPONSIBILITY TO PRINT OR SAVE A COPY OF EACH ONLINE STATEMENT AND RETAIN IT FOR YOUR RECORDS. If we make an error on your bill, you must tell us within 120 days after the error first appears on your bill. We will then promptly investigate the charge. If you do not tell us within that time, you release us from all liability and claims of loss resulting from the error and we will not be required to correct the error or provide a refund. If Microsoft has identified a billing error, we will correct that error within 90 days.
6.6. Cooling off period. When you request a service from us, you agree that we may begin to provide the service immediately. You will not be entitled to a cancelation or "cooling off" period, except if the law requires a cooling off period. You may cancel paid services as provided in Section 6.10.
6.7. Trial-period offers. If you are taking part in any trial-period offer, you must cancel the Services by the end of the trial period to avoid incurring new charges, unless we notify you otherwise. If you do not cancel your Services at the end of the trial period, we may charge you for the Services.
6.8. Price Changes. We may change the price of the Services at any time and will notify you by email at least 15 days before the price change. If you do not agree to the price change, you must cancel and stop using the Services before the price change takes effect. If there is a fixed term and price for your Services offer, that price will remain in force for the term.
6.9. Refund policies. Unless otherwise provided by law or by a particular Services offer, all purchases are final and nonrefundable.
6.10. Canceling the Services. You may cancel the Services at any time, with or without cause. Information on how to cancel your Services is provided on the Billing and AccountManagement website (https://billing.microsoft.com). You should refer to the offer describing the Services as (i) you may not receive a refund at the time of cancelation; (ii) you may be obligated to pay cancelation charges; (iii) you may be obligated to pay all charges made to your billing account for the Services before the date of cancelation; or (iv) you may lose access to and use of your account when you cancel the Services. If you cancel, your Services end at the end of your current service period or, if we bill your account on a periodic basis, at the end of the period in which you canceled.
6.11. Late payments. You must pay for all reasonable costs we incur to collect any past due amounts. These include reasonable attorneys' fees and other legal fees and costs, in event of default.
6.12. Payments to you. If we owe you a payment, then you agree to timely and accurately provide us with any information we need to get that payment to you. You are responsible for any taxes and charges you may incur as a result of this payment to you. You must also comply with any other conditions we place on your right to any payment. If you receive a payment in error, we may reverse or require return of the payment. You agree to cooperate with us in our efforts to do this. We may also reduce the payment to you without notice to adjust for any previous overpayment.
6.13. Internet Access May Be Required. You may incur charges related to Internet access, data transfer and other services per the terms of the data service plan and any other agreements you have with your network operator related to use of the Services. You are solely responsible for any network operator charges.
7. Microsoft Points
Microsoft Points is a service under which you can acquire Points and redeem those Points for certain online services and digital products. You can see how many Points you have by checking your Points balance at https://billing.microsoft.com. You can obtain selected Services or digital products that we offer in exchange for Points. You can do this by redeeming your Points as described in the messaging for those offers.
You can acquire Points in a variety of ways. For example, you can purchase Points, or certain Services may give you Points for using the service or specific features of the service (also known as "Promotion Points"). You can earn Promotion Points only for actions you actually complete. You are responsible for any taxes that may result from your participation in the Points service.
When you obtain Points, you have obtained a limited license to a digital product. Points have no monetary value. You may not exchange Points for cash or money, regardless of how you acquired those Points. Points are not your personal property. Your only recourse for using Points is to obtain the specific online services or digital products that we offer for Points redemption. Points are sold in a few denominations only. Unused Points are not refundable. We may further restrict our Points redemption offers based on your country of residence. We encourage you to redeem your Points. Points redemption offers may be limited in time and scope. The scope, variety, and type of online services and digital products offered can change at any time. We have no obligation to continue making offers available for Points redemption.
Promotion Points may expire at any time, as set forth in the messages related to that promotion. We may cancel, suspend, or otherwise limit your access to your Points if we suspect fraudulent, abusive, or unlawful activity. Once we delete Points from a balance, we will not reinstate them, except at our discretion. When we cancel, suspend, or otherwise limit access to your Points, yourright to use your Points immediately ceases. We will use reasonable efforts to investigate Points that are subject to access limitations and to reach a final decision on the limitations promptly. In addition, we may limit your use of the Points service. This includes applying limits to: (i) the number of Points you may have credited to your Points balance at one time; (ii) the number of Points you may redeem within a given time period (for example, one day); and (iii) the number of Promotion Points you may obtain in a single event.
If we post Points to your balance for activity that is subsequently voided, canceled or involves a returned item, we will remove those Points from your balance. You must ensure that we properly post your Points to your Points balance. If you believe you have validly acquired Points that we have not posted to your Points balance, subject to applicable laws, we will not post these Points unless you contact us within 12 months after the date you claim to have acquired those Points. We may require reasonable documentation to support your claim.
8. NO WARRANTIES. MICROSOFT, AND OUR AFFILIATES, RESELLERS, DISTRIBUTORS, AND VENDORS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN "AS IS" BASIS "WITH ALL FAULTS" AND "AS AVAILABLE." MICROSOFT DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF INFORMATION AVAILABLE FROM THE SERVICES. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THIS AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE.
YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT CONTENT LOSS WILL NOT OCCUR.
IF YOU ARE USING AN XBOX 360 CONSOLE, XBOX ACCESSORY, OR KINECT SENSOR OUTSIDE A SUPPORTED TERRITORY, MICROSOFT IS NOT RESPONSIBLE AND YOUR XBOX OR KINECT PRODUCT IS EXCLUDED FROM WARRANTY COVERAGE AND PRODUCT SUPPORT.
9. LIABILITY LIMITATION.
You can recover from us for all successful claims only direct damages up to a total amount equal to your Services fee for one month. You cannot recover any other damages, including consequential, special, indirect, incidental, or punitive damages and lost profits.
This limitation applies to anything related to this Agreement, for example:
• the Services;
• loss of data;
• your content, third-party content (including code), third-party programs, or third-party conduct;
• viruses or other disabling features that affect your access to or use of the Services;
• incompatibility between the Services and other services, software, or hardware;
• delays or failures you may have in initiating, conducting, or completing any transmissions or transactions in connection with the Services in an accurate or timely manner; and
• claims for breach of contract, warranty, guarantee or condition; consumer protection; deception; unfair competition; strict liability, negligence, misrepresentation, omission, trespass or other tort; violation of statute or regulation; or unjust enrichment.
It also applies even if this remedy does not fully compensate you for any losses, fails of its essential purpose, or we knew or should have known about the possibility of the damages.
Nothing in this Agreement will affect a consumer's statutory rights that cannot be modified by agreement. Nothing in this Agreement will exclude or restrict liability for death or personal injury arising from our negligence, fraud, gross negligence or willful intent. Some or all of these limitations or exclusions may not apply to you if your state, province, or country does not allow the exclusion or limitation of incidental, consequential or other damages.
10. Other Notices.
10.1. Copyright and Trademark Notices. All contents of the Services except user-generated and third-party content are Copyright © 2012 Microsoft and/or its suppliers, One Microsoft Way, Redmond, Washington 98052-6399 U.S.A. All rights reserved. We or our suppliers own the title, copyright and other intellectual property rights in the Services, software, and content. Microsoft products and services may also be either trademarks or registered trademarks of Microsoft in the United States and other countries, which can be found here: http://www.microsoft.com/About/Legal/EN/US/IntellectualProperty/Trademarks/EN-US.aspx. The names of actual companies and products mentioned in this Agreement may be the trademarks of their respective owners. Any rights not expressly granted in this Agreement are reserved. Certain software used in certain Microsoft website servers is based in part on the work of the Independent JPEG Group. Copyright © 1991-1996 Thomas G. Lane. All rights reserved. "gnuplot" software which may be used in certain Microsoft website servers is copyright © 1986-1993 Thomas Williams, Colin Kelley. All rights reserved.
10.2. Notices and Procedure for Making Claims of Copyright Infringement. Notifications of claimed copyright infringement should be sent to Microsoft's Designated Agent pursuant to Title 17, United States Code, Section 512(c)(2). WE WILL NOT RESPOND TO INQUIRIES THAT ARE NOT RELEVANT TO THE FOLLOWING PROCEDURE. For details and contact information see Notice and Procedure for Making Claims of Copyright Infringement at http://www.microsoft.com/info/cpyrtInfrg.htm.
10.3. Financial Notice. Microsoft is not a broker/dealer or registered investment advisor under U.S. federal securities law or securities laws of other jurisdictions. Microsoft does not advise individuals as to the advisability of investing in, purchasing, or selling securities or other financial products or services. Nothing contained in the Services constitutes an offer or solicitation to buy or sell any security. Neither Microsoft nor its licensors of stock quotes or index data endorse or recommend any particular financial products or services. Nothing contained in the Services is intended to constitute professional advice, including but not limited to, investment or tax advice.
10.4. The Software may include AVC/H.264, VC-1 and MPEG-4 visual codec technology. This technology is a format for data compression of video information. MPEG LA, L.L.C. requires this notice:
USE OF THIS PRODUCT IN ANY MANNER THAT COMPLIES WITH THE AVC/H.264, VC-1, and MPEG-4 VISUAL STANDARDS IS PROHIBITED, EXCEPT FOR USE DIRECTLY RELATED TO (A) DATA OR INFORMATION (i) GENERATED BY AND OBTAINED WITHOUT CHARGE FROM A CONSUMER NOT THEREBY ENGAGED IN A BUSINESS ENTERPRISE, AND (ii) FOR PERSONAL USE ONLY; AND (B) OTHER USES SPECIFICALLY AND SEPARATELY LICENSED BY MPEG LA, L.L.C.
If you have questions about the AVC/H.264, VC-1, and MPEG-4 visual standards, please contact MPEG LA, L.L.C., 250 Steele Street, Suite 300, Denver, CO 80206; www.mpegla.com.
11. Microsoft Contracting Entity, Governing Law, and Choice of Forum
You are contracting with Microsoft Corporation, One Microsoft Way, Redmond, WA 98052, USA. The laws of the state where you live govern the interpretation of this Agreement, claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, for all disputes arising out of or relating to this Agreement or the Services that are heard in court (not arbitration and not small claims court).
12. Xbox LIVE and Games for Windows-LIVE
The following additional terms apply to Xbox LIVE and Games for Windows-LIVE:
We require certain permissions in order for you to evaluate or use and for us to enable the features and functions of the Xbox LIVE/Games for Windows-LIVE service. These features and functions include leaderboards, live-hosted gameplay, achievements, tournaments, and gamer profile sharing. If you evaluate or use or we enable these features and functions, you grant Microsoft and its affiliates, resellers, distributors, service providers, partners, and suppliers (each, a "Microsoft party") the following permissions: Microsoft parties may use, track, store, copy, distribute, broadcast, transmit, publicly display and perform, and reproduce: (i) your game scores; (ii) your game play sessions; (iii) your presence on the Xbox LIVE/Games for Windows-LIVE service; (iv) the time that you spend on or within particular portions of the Xbox LIVE/Games for Windows-LIVE service; (v) portions of the Xbox LIVE/Games for Window-LIVE service that are displayed on your monitor or screen and the duration of that display; (vi) rankings, statistics, gamer profiles, avatars, and content that you may submit; and (vii) other usage information. These permissions apply with or without attribution to you, your gamertag or avatar. We may use these permissions without notice or compensation to you of any kind. To avoid any confusion, we have the right to make information pertaining to your use of, and gameplay on, Xbox LIVE available through Games for Windows-LIVE, and vice versa. If you choose to link your Services account with the account of a Microsoft party on the Xbox LIVE service (for example, a game publisher or app provider), you agree that Microsoft may share limited account information with that Microsoft party. Such account information may include name, address, email and age but will not include any credit card or other payment information.
You should not expect any level of privacy concerning your use of the live communication features (for example, voice chat, video and communications in live-hosted gameplay sessions) offered through the Xbox LIVE/Games for Windows-LIVE service. We may monitor these communications to the extent permitted by law. However, we cannot monitor the entire Services and make no attempt to do so. You understand that others can record and use these communications. Communications in live-hosted gameplay sessions may also be broadcast to others. Some games may use game managers and hosts. Game managers and hosts are not authorized Microsoft spokespersons. Their views do not necessarily reflect those of Microsoft.
When you use Voice Search, all voice commands are sent to Microsoft and stored to provide the Voice Search Service and improve Microsoft products. If you use Voice Search, you consent to Microsoft recording and collecting your voice input to provide the Voice Search Service and improve Microsoft products. We will treat any voice input according to the Privacy Statement (http://go.microsoft.com/fwlink/?LinkID=259655).
Standard Windows Phone Application License Terms
STANDARD APPLICATION LICENSE TERMS (UPDATED SEPTEMBER 2012)
WINDOWS PHONE STORE/MARKETPLACE
These license terms are an agreement between you and the application provider. Please read them. They apply to the software applications you download from the Windows Phone Store/Marketplace including any updates or supplements for the applications, unless the application comes with separate terms, in which case those terms apply instead. BY DOWNLOADING OR USING THE APPLICATION, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, YOU DO NOT HAVE RIGHTS TO AND MUST NOT DOWNLOAD OR USE THE APPLICATION.
The application provider means the entity licensing the application to you, as identified in the Windows Phone Store/Marketplace.
If you accept and comply with these license terms, you have the rights below.
1. INSTALLATION AND USE RIGHTS. You may install and use one copy of the application on up to five (5) Windows Phone enabled devices that are affiliated with the Microsoft account you use to access the Windows Phone Store/Marketplace.
2. INTERNET-BASED SERVICES.
a. Consent for Internet-Based or Wireless Services. The application may connect to Internet-based or wireless services. Your use of the application operates as your consent to the transmission of standard device information (including but not limited to technical information about your device, system and application software, and peripherals) for Internet-based or wireless services. If other terms are provided in connection with your use of the services, those terms also apply.
b. Misuse of Internet-based Services. You may not use any Internet-based service in any way that could harm it or impair anyone else's use of it or the wireless network. You may not use the service to try to gain unauthorized access to any service, data, account or network by any means.
3. SCOPE OF LICENSE. The application is licensed, not sold. This agreement only gives you some rights to use the application. If Microsoft disables the ability to use the applications on your devices pursuant to your agreement with Microsoft, any associated license rights will terminate. Application provider reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the application only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the application that only allow you to use it in certain ways. You may not:
• work around any technical limitations in the application;
• reverse engineer, decompile or disassemble the application, except and only to the extent that applicable law expressly permits, despite this limitation;
• make more copies of the application than specified in this agreement or allowed by applicable law, despite this limitation;
• publish or otherwise make the application available for others to copy;
• rent, lease or lend the application; or
• transfer the application or this agreement to any third party.
4. DOCUMENTATION. If documentation is provided with the application, you may copy and use the documentation for your internal, reference purposes.
5. EXPORT RESTRICTIONS. The application is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the application. These laws include restrictions on destinations, end users and end use. For information on Microsoft branded products, see www.microsoft.com/exporting.
6. SUPPORT SERVICES. Contact the application provider to determine if any support services are available. Microsoft (unless Microsoft is the application provider), your phone manufacturer, and your wireless carrier are not responsible for providing support services for the application.
8. APPLICABLE LAW.
a. United States. If you acquired the application in the United States, the laws of the state where you live govern the interpretation of this agreement, claims for breach of it, and all other claims (including consumer protection unfair competition, and tort claims), regardless of conflict of law principles.
b. Canada. If you acquired the application in Canada, the laws of the province where you live govern the interpretation of this agreement, claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles.
c. Outside the United States and Canada. If you acquired the application in any other country, the laws of that country apply.
9. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your country. This agreement does not change your rights under the laws of your country if the laws of your country do not permit it to do so.
10. DISCLAIMER OF WARRANTY. THE APPLICATION IS LICENSED "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING IT. THE APPLICATION PROVIDER, ON BEHALF OF ITSELF, MICROSOFT, WIRELESS CARRIERS OVER WHOSE NETWORK THE APPLICATION IS PROVIDED, AND EACH OF OUR RESPECTIVE AFFILIATES, VENDORS, AGENTS AND SUPPLIERS ("COVERED PARTIES"), GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS UNDER OR IN RELATION TO THE APPLICATION. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APPLICATION IS WITH YOU. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, COVERED PARTIES EXCLUDE ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
11. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, YOU CAN RECOVER FROM THE APPLICATION PROVIDER ONLY DIRECT DAMAGES UP TO THE GREATER OF THE AMOUNT YOU PAID FOR THE APPLICATION OR ONE U.S. DOLLAR (US$1.00). YOU AGREE NOT TO SEEK TO RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES FROM ANY COVERED PARTIES.
This limitation applies to:
• anything related to the application, services or content made available through the application; and
• claims for breach of contract, warranty, guarantee or condition; consumer protection; deception; unfair competition; strict liability, negligence, misrepresentation, omission, trespass or other tort; violation of statute or regulation; or unjust enrichment; all to the extent permitted by applicable law.
It also applies even if:
• repair, replacement or a refund for the application does not fully compensate you for any losses; or
• Covered Party knew or should have known about the possibility of the damages.