Microsoft Dynamics Insider Program Agreement

Last Updated: April 2018

This Microsoft Dynamics Insider Program Agreement ("Agreement") is a contract between Microsoft Corporation (or based on where you live, one of Microsoft's affiliates) ("Microsoft") and you (if you were invited to participate as an individual) or the entity you represent (if you are entering into this Agreement on behalf of your employer or other entity). "Participant" or "you" means the individual or entity entering into this Agreement with Microsoft.

By accessing or using the Insider Program website or any Preview (each defined below), you accept this Agreement, effective as of the date of first access or use ("Effective Date"). You also represent and warrant that if you are entering into this Agreement: (a) as an individual, you have capacity to accept this Agreement; or (b) through the acts of an agent or employee, that person has authority to act on behalf of and to bind you to this Agreement. If you do not accept these terms, you must not (and have no right to) access or use the Insider Program website or any Preview.

The parties agree as follows:

Section 1. Overview. This Agreement governs Participant's participation in the "Insider Program," a Microsoft offering through which Participant may access certain tools and information and view and apply for early access to preview versions of certain Microsoft online services and software for which Participant is eligible (each such preview version, a "Preview"). If Participant applies, and Microsoft selects Participant, for a Preview, Microsoft will notify and grant Participant access to it. Such notice will be by email and may include additional or different terms applicable to that Preview ("Preview Terms"). Microsoft may update the available Previews in the Insider Program from time to time.

(a) Program Materials. Each party will comply with the Program Materials related to its participation in the Previews. "Program Materials" means, collectively, all materials that describe a Preview that Microsoft makes available to Participant, including invitations, materials specifying requirements or eligibility criteria, program participation guides, and Preview documentation.

(b) Feedback. Participant will give Microsoft suggestions, comments, input, ideas, or know-how, in any form, ("Feedback") about Previews that Participant is participating in. However, Participant will not provide Microsoft with Feedback containing Personal Data or other data that is subject to legal or regulatory compliance requirements. Participant gives to Microsoft, without charge, the right to use, share, and freely commercialize Feedback in any way and for any purpose. Participant also gives third parties, without charge, the right to use, or interface with, any Microsoft products or services that include the Feedback. Participant represents and warrants that it owns or otherwise controls all rights to such Feedback and that no such Feedback is subject to any third-party rights.

Section 2. Use of Previews.

(a) Required Offerings. Certain Microsoft services or software may be necessary to use a particular Preview ("Required Offerings"). Microsoft does not grant any rights under this Agreement to access or use Required Offerings; rather, Required Offerings are separately licensed to Participant under a Microsoft Licensing Agreement, which may require paying a fee. The Required Offerings for a given Preview will be identified in the Preview Terms. "Microsoft Licensing Agreement" or "MLA" means the Microsoft Online Services Terms (see http://microsoftvolumelicensing.com) and Participant's Microsoft volume licensing agreement, or any other applicable agreement, under which Participant subscribed or was granted a license to to any Required Offerings.

(b) Rights. During the Term, Microsoft grants Participant a non-exclusive, non-transferable, non-sublicensable right to access and use, solely in accordance with this Agreement, any Previews that Microsoft selects Participant to participate in. This Section 2(b) extends to Participant's authorized users, and Participant is fully liable for their use.

(c) Use terms. Participant acknowledges that: (i) Previews may not work correctly or the same way that a commercial version may work; (ii) if Microsoft elects to provide support for any Previews, such support will be provided "as is", "with all faults", and without warranty, and Microsoft may cease providing support at any time, without notice; (iii) except as otherwise expressly stated in this Agreement, the MLA does not apply to any Previews; (iv) Microsoft has no obligation to hold, export, or return any Customer Data (defined in the MLA) in relation to any Previews; (v) Participant may use Previews for testing and evaluation purposes only; (vi) Participant may not use Previews to access or process any "live" or production Customer Data, or Personal Data or other data that is subject to legal or regulatory compliance requirements; (vii) Microsoft may chose not to make a Preview generally commercially available Previews are subject to reduced or different security, compliance and privacy commitments. Any data provided to Microsoft through Customer's use of Previews may be transferred, stored, and processed in the United States, or in any other country where Microsoft or its subcontractors operate.

(d) Acceptable use. Participant will not: (i) use Previews (A) in a way prohibited by law, regulation, or government order or decree; (B) to violate others' rights; (C) to try to gain unauthorized access to or disrupt any service, device, account, or network; (D) to distribute unsolicited commercial email or malware; or (E) in a way that could harm the Previews or impair anyone else's use of them; or (ii) reverse engineer, decompile, disassemble, or work around any technical limits in any Previews. Participant will respond to any third-party claims regarding its use of Previews or Customer Data (e.g., under the DMCA), and will comply with them as necessary to comply with laws.

(e) Software. If a Preview includes any software, Participant may install and use it on its devices only with (and for so long as Participant has the right to use) such Preview under this Agreement. Participant will comply with any additional terms that may accompany such software. Participant must uninstall any such software when its right to use the applicable Preview ends (and Microsoft may also disable it at that time).

(f) Updates. Microsoft may (but is not obligated to) provide updated versions of Previews, including by downloading updated software to Participant's devices. Any such update may add, remove, or change features of the Preview. Participant will install (if applicable) and will use only such updated versions after Microsoft provides such updates.

(g) Third party sites. Any links to third-party websites included in the Insider Program website or in any Previews are provided for convenience only, and Microsoft is not responsible for the content of any such sites.

(h) Non-Microsoft software. If Participant installs or uses any non-Microsoft software with any Previews: (i) Microsoft is not bound by any terms governing Participant's use of such software; (ii) Participant directs and controls such installation and use (e.g., through use of application programming interfaces and other means that may be part of the Previews); and (iii) Participant may not do so in a way that would subject Microsoft intellectual property rights or technology to obligations beyond those in this Agreement. Microsoft will not run or copy such non-Microsoft software outside of its relationship with Participant.

Section 3. Customer Data. The applicable MLA terms (which may be incorporated in the MLA by reference) pertaining to collection, use, and location of Customer Data (as such terms are modified in the MLA to apply to previews) will apply to collection, use, and location of Customer Data under this Agreement. The accuracy and performance of the Previews improve by having had access to large volumes of data. Microsoft will solely own any enhancements or improvements to the Previews arising from access to and use of Customer Data. Microsoft may also use information derived from Customer Data if such use does not include Customer Data and no Customer Data can be reverse engineered from such use.

(a) Data Transfers. Customer Data and Personal Data that Microsoft processes on Customer's behalf may be transferred to, and stored and processed in, the United States or any other country in which Microsoft or its subprocessors operate. Customer appoints Microsoft to perform any such transfer of Customer Data and Personal Data to any such country and to store and process Customer Data and Personal Data to provide the Preview. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Personal Data to a third country or an international organization will be subject to appropriate safeguards as described in Article 46 of the GDPR ((EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) and such transfers and safeguards will be documented according to Article 30(2) of the GDPR. In addition, Microsoft is certified to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks and the commitments they entail. Microsoft agrees to notify Customer if it makes a determination that it can no longer meet its obligation to provide the same level of protection as is required by the Privacy Shield principles.

Section 4. Reservation of rights. All rights not expressly granted are reserved by the applicable rights holder, and no rights or licenses are granted (or deemed granted) by implication, estoppel, or exhaustion.

Section 5. Confidentiality.

(a) Existing NDA. The information shared under this Agreement (except Feedback) is Confidential Information (defined in the NDA) subject to the Microsoft non-disclosure agreement, if any, between the parties ("NDA"). If the parties do not have an NDA that is in effect, then Sections 5(b) – (c) will apply.

(b) Definition. "Confidential Information" means non-public information, know-how, or trade secrets in any form that are designated confidential or that a reasonable person knows or reasonably should know to be confidential. Confidential Information does not include any information, however designated, that: (i) is or becomes publicly available without a breach of this Agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential; (iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; (iv) is independently developed; or (v) is Feedback.

(c) Use. Neither party will disclose the other's Confidential Information to a third party for five years. Each party will: (i) use such information only for purposes of this business relationship; and (ii) take reasonable steps to protect the other's Confidential Information. Each party may disclose the other's Confidential Information to its affiliates, employees, and contractors only on a need-to-know basis, subject to this Section 5. In addition, Confidential Information may also be disclosed as necessary to comply with a judicial or other governmental order, if receiving party either gives reasonable notice of such disclosure to allow disclosing party a reasonable opportunity to seek a protective order or equivalent; or obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law, or otherwise as may be required by law.

Section 6. Publicity. In connection with a Preview, Microsoft may create documentation, films, photographs, referrals, quotations, or other recordings or materials ("Publicity Materials"). Any Publicity Materials will be identified in the Preview Terms (and this Section 6 applies only to the extent that particular Preview Terms identify particular Publicity Materials).

(a) Rights. Participant grants Microsoft the non-exclusive right to: (i) use Participant's name, trademarks and service marks, and logos ("Marks") in such Publicity Materials; (ii) interview and film, photograph, and record its employees and business operations at mutually agreed times and locations; and (iii) use Participant's or its employees' names, voices, statements, and likenesses ("Name and Likeness") as embodied in the Publicity Materials for advertising, marketing, promotional, editorial, and public relations purposes in relation to Previews, in any and all media and formats. Participant will obtain (and represents and warrants that it has obtained) all releases and clearances necessary to grant all rights required under this Section 6.

(b) Approvals. Participant will have the right to approve, before Microsoft's first use, any Publicity Materials that include Marks or Name and Likeness. Participant will promptly review and either approve or disapprove them (such approval not to be unreasonably withheld) within 5 business days of receipt. Failure to respond within such 5-day period will be deemed approval. Participant is solely responsible for bringing to Microsoft's attention any factual errors or removing Participant's Confidential Information from Publicity Materials.

Section 7. Representations and warranties.

(a) Mutual. Each party represents and warrants to the other that: (i) it has all necessary rights, title, and authority to enter into and perform under this Agreement; (ii) its performance under this Agreement will not breach any agreement with a third party; and (iii) it will comply with any and all laws, rules, and regulations applicable to its performance under this Agreement.

(b) Disclaimer. Except as otherwise expressly provided in this Agreement and to the extent applicable law permits, Microsoft: (i) provides the Insider Program and all Previews "as-is"; (ii) provides no warranties (express, implied, statutory, or otherwise), including of merchantability or fitness for a particular purpose; and (iii) does not guarantee that the Insider Program or any Previews will be uninterrupted, available, or error-free, or that loss of Participant's Customer Data will not occur. Without limiting the above, Microsoft is not liable for any damage to hardware or software or loss of files or data related to use of Previews.

(c) Ineffective disclaimer. Liability for breach of an implied warranty that cannot, under applicable law, be disclaimed or excluded is, if permitted by applicable law, limited, at breaching party's election: (i) for goods, to replacing, repairing, or supplying equivalent goods (or paying the cost of the foregoing or refunding the purchase price); and (ii) for services, to supplying (or paying a third party to supply) the services again or refunding the purchase price.

Section 8. Limited liability. Except as otherwise described in this Section 8 or in Section 7(c), each party's exclusive remedy for claims under this Agreement is to terminate this Agreement or Participant's participation in the applicable Preview. Each party's maximum, aggregate, liability arising out of or related to this Agreement (including related to access or use of the Insider Program website or participation in or use of any Preview) to you and anyone else, to the maximum extent allowed by law, is limited to direct damages incurred in reasonable reliance, in an amount not to exceed $500. Neither party will be liable for any other damages, including indirect, special, incidental, consequential, punitive, or exemplary damages, or for lost revenue, lost profits, lost business information, or business interruption, related to this Agreement, even if the at-fault party knew or should have known such damages were possible. This Section 8 does not apply to claims arising from any breach of confidentiality obligations under Section 5 or to obligations under (or breach of) Section 10.

Section 9. Term and termination.

(a) Term; termination rights. The term of this Agreement ("Term") begins on the Effective Date and continues until terminated or until Microsoft terminates all Previews, whichever occurs first. Either party may terminate this Agreement on 30 days' notice for any or no reason. Microsoft may also terminate or suspend this Agreement, in whole or part, immediately on notice if Participant breaches this Agreement and the breach is one that cannot be cured. Moreover, this Agreement will terminate automatically following notice to Participant of breach if Participant fails to cure the breach within five days of such notice. This Agreement also terminates automatically and without notice with respect to any Preview when it becomes generally publicly available, other than as a pre-release or "beta" product or service, or Microsoft ceases to offer the Preview.

(b) Effect of Termination. On termination or expiration of this Agreement, Participant must stop using the Preview. Sections 1(b), 4, 5, 7, 8, 9, 10, and 11 will survive such expiration or termination.

Section 10. Indemnification. Participant will defend Microsoft against any claims made by an unaffiliated third party that (i) any Customer Data, non-Microsoft Products, Marks, or services you provide, directly or indirectly, in using a Preview or the Program Materials infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; (ii) arise from violation of Section 2(d) (Acceptable use) of this Agreement or any other policy that governs Participant's use of a Preview or Program Materials; or (iii) arise from use of any Preview in a "live" or production environment or to process "live" or production Customer Data or any Personal Data.

Section 11. General.

(a) Non-Exclusivity. This Agreement is nonexclusive. It does not restrict either party from entering into the same or similar arrangement with any third party.

(b) Notices. Participant consents to receive notices, and any information the law requires Microsoft to provide, by email to the address Participant provided to Microsoft to join the Insider Program ("Participant's Email"). Notices emailed to Participant will be deemed given and received when sent to Participant's Email. All notices to Microsoft related to this Agreement: (i) must be in writing (excluding email), sent to Microsoft Corporation; Attn: Dynamics Insider Program; One Microsoft Way, Redmond, WA 98052; (ii) will be deemed given when actually received by the Microsoft recipient below; and (iii) will be copied via facsimile to: Microsoft Corporation; Attn: Corporate, External, and Legal Affairs for the Dynamics Insider Program at (425) 936-7329.

(c) Jurisdiction; law. The laws of Washington State, excluding conflicts of law provisions, govern this Agreement. If federal jurisdiction exists, then each party consents to exclusive jurisdiction and venue in the federal courts in King County, Washington. If no federal jurisdiction exists, then each party consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington. If a party employs attorneys to enforce any rights relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys' fees, costs, and other expenses.

(d) Force majeure. A party will not be liable for failure to perform under this Agreement to the extent that failure is due to a cause beyond that party's reasonable control, including natural disaster, war, civil disturbance, or government action.

(e) Limitation on claims. Any claim related to this Agreement, the Insider Program, or any Preview is barred unless brought within one year from the date it could first be filed. This limitation applies to each party's successors and any permitted assigns.

(f) Miscellaneous. Participant may not assign this Agreement without Microsoft's prior, written consent. Each party is an independent contractor, and this Agreement does not create any other relationship. If any court of competent jurisdiction determines that any part of this Agreement is illegal, invalid, or unenforceable, the rest of the Agreement will remain in full force and effect. Only written waivers are effective. This Agreement (including any Preview Terms and any NDA, which are incorporated in this Agreement by this reference) is the parties' entire agreement regarding (and replaces all prior agreements, communications, and representations between the parties on) this subject. This Agreement supersedes any other Microsoft terms or agreements that may be linked from any Previews. If any Preview Terms conflict with this document, the Preview Terms will control, but only for the particular Preview.

(g) Interpretation. This Agreement will be interpreted according to its plain meaning without presuming it should favor either party. Unless stated or context requires otherwise: (i) all internal references are to this Agreement and its parties; (ii) "days" means calendar days; (iii) "may" means that the applicable party has a right, but not a concomitant duty; (iv) "notify" means to give notice under (and "notice" means a notice that complies with) Section 11(b); (v) "current" or "currently" means "as of the Effective Date" but "then-current" means the present time when the applicable right is exercised or performance rendered or measured; (vi) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at such URLs; (vii) lists of examples following "including", "e.g.", "such as", "excludes", "for example", or similar words are deemed to include "without limitation"; (viii) the word "or" is deemed to be an inclusive "or"; and (ix) a party's choices under this Agreement are in its sole discretion.

(h) Modification. Microsoft may modify this Agreement, solely with prospective effect. By continuing to access or use the Insider Program website or any Preview after notice of such modification, Participant is deemed to have agreed to such modified Agreement. If Participant does not agree, it must immediately terminate this Agreement under Section 9(a).