MICROSOFT PRE-RELEASE SOFTWARE LICENSE TERMS

MICROSOFT KAIZALA SOFTWARE DEVELOPMENT KIT


These license terms are an agreement between Microsoft Corporation (or one of its affiliates) and you (“Terms”). They apply to the software named above and any Microsoft services or software supplements or updates (except to the extent such services or updates are accompanied by new or additional terms, in which case those different terms apply prospectively and do not alter your or Microsoft’s rights relating to pre-updated software or services) (collectively, the “SDK”).

IF YOU COMPLY WITH THESE TERMS, YOU HAVE THE RIGHTS BELOW. BY USING THE SDK, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SDK.

1. INSTALLATION, LICENSE AND USE RIGHTS.

a) General. You may install and use any number of copies of the SDK on your devices to design, develop and test your programs for use in connection with the Microsoft Kaizala application only. You understand that any software, component or functionality provided in the SDK is a pre-release version, which may not operate correctly and it may be different from the commercially released version. You further agree that Microsoft in its sole discretion may make updates to the SDK and you agree that Microsoft is not responsible for ensuring that such updates are compatible or function properly with the programs and/or your use of any programs that incorporate the SDKBy using the SDK. Any documentation provided along with the SDK is subject to change at Microsoft’s sole discretion, and while Microsoft may periodically send notices regarding such change, you are ultimately responsible for ensuring your program’s functionality the SDK and compliance with these Terms.

b) Scope of license. The SDK is licensed, not sold. These Terms only give you some rights to use the SDK. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the SDK only as expressly permitted in these Terms. In doing so, you must comply with any technical limitations in the SDK that only allow you to use it in certain ways. You may not:

i. work around any technical limitations in the SDK;

ii. reverse engineer, decompile or disassemble the SDK, except and only to the extent that applicable law expressly permits, despite this limitation;

iii. make more copies of the SDK than specified in these Terms or allowed by applicable law, despite this limitation;

iv. publish the SDK for others to copy;

v. rent, lease or lend the SDK;

vi. transfer the SDK or these Terms to any third party that is not an authorized distributor or external end user of your programs; or

vii. use the SDK for commercial software hosting services.

c) Term of license. These Terms are effective on your acceptance and terminates on the earlier of (i) 30 days following first availability of a commercial release of the SDK or (ii) upon termination by Microsoft. Microsoft may extend these Terms in its sole discretion.

d) Additional licensing requirements and/or use rights. The SDK contains code and text files that you are permitted to distribute in the programs you develop only if you comply with the Terms (“Distributable Code”). You may modify, copy and distribute to third parties the source and object form code of the Distributable Code marked as “sample” (“Sample Code”). Unless otherwise authorized by Microsoft, you will not modify any other Distributable Code provided as part of the SDK.

e) Documentation. Any person that has valid access to your computer or internal network may copy and use any documentation accompanying the SDK for your internal, reference purposes.

2. DISTRIBUTION REQUIREMENTS.

a) General. For any Distributable Code you distribute, you must: i. add significant primary functionality to it in your programs;

ii. for any Distributable Code having a filename extension of .lib, distribute only the results of running such Distributable Code through a linker with your program;

iii. distribute Distributable Code included in a setup program only as part of that setup program without modification;

iv. display your valid copyright notice on your programs;

v. indemnify, defend and hold harmless Microsoft from any claims, including attorneys’ fees, related to the distribution or use of your programs; and

b) Distribution to an Enterprise or End User. To the extent you or a third party distributor distributes programs or applications you develop using the SDK, you must include provisions in your terms of use for the program or application provisions that address the following (“Minimum Required Terms”):

i. The program or application is a pre-release or “preview” version, which may not operate correctly and it may be different from the commercially released version.

ii. Neither you nor Microsoft or its affiliates have any warranty obligation whatsoever. The program or application is provided “as is” without warranties of any kind, express or implied.

iii. Neither you nor Microsoft or its affiliates shall bear any liability for claims or damages resulting from use of the program or application.

iv. Microsoft and its affiliates are third party beneficiaries of the program or application terms of use and have the right to enforce the terms of use.

c) Third party distribution. You may permit distributors of your program(s) to distribute so long as you adhere to the third party’s pre-release, pre-flight, and/or Beta programs Terms of the Distributor and that your program is clearly marked as a Preview or Pre-Release and not a final product. Examples of such pre-release, pre-flight and/or Beta programs include but are not limited to Apple TestFlight and Google Play Alpha/Beta Tests.

d) Distribution Restrictions. You may not:

i. alter or otherwise block any copyright, trademark or patent notice in the Distributable Code;

ii. use Microsoft’s trademarks in your programs’ names or in a way that suggests your programs come from or are endorsed by Microsoft;

iii. include Distributable Code in malicious, deceptive or unlawful programs; or

iv. modify or distribute the source code of any Distributable Code so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that 1. the code be disclosed or distributed in source code form; or 2. others have the right to modify it. 3. EXPORT RESTRICTIONS. The SDK 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 SDK. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting. 4. SUPPORT SERVICES. Microsoft is not obligated under these Terms to provide any support services for the SDK. TO THE MAXIMUM EXTENT PERMITTED BY YOUR LAW, ANY SUPPORT SERVICES PROVIDED ARE PROVIDED “AS IS” AND MICROSOFT DISCLAIMS AND EXCLUDES ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, SATISFACTORY CONDITION OR QUALITY, MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY SUPPORT SERVICES OR OTHER MATERIALS OR INFORMATION WE PROVIDE. YOU BEAR THE ENTIRE RISK OF THE SUPPORT SERVICES’ QUALITY AND PERFORMANCE.
5. FEEDBACK. If you give feedback about the SDK to Microsoft, you give to Microsoft, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You will not give feedback that is subject to a license that requires Microsoft to license its software or documentation to third parties because Microsoft includes your feedback in them. These rights survive these Terms. 6. DATA COLLECTION. The SDK may collect information about you and your use of the SDK and send that to Microsoft. Microsoft may use this information to provide services and improve Microsoft’s products and services. Your opt-out rights, if any, are described in the product documentation. Some features in the software may enable collection of data from users of your applications that access or use the SDK. If you use these features to enable data collection in your applications, you must comply with applicable law, including getting any required user consent, and maintain a prominent privacy policy that accurately informs users about how you use, collect, and share their data. You can learn more about Microsoft’s data collection and use in the product documentation and the Microsoft Privacy Statement at https://go.microsoft.com/fwlink/?LinkId=521839. You agree to comply with all applicable provisions of the Microsoft Privacy Statement. 7. UPDATES. The SDK may periodically check for updates, and download and install them for you. You may obtain updates only from Microsoft or authorized sources. Microsoft may need to update your system to provide you with updates. You agree to receive these automatic updates without any additional notice. Updates may not include or support all existing software features, services, or peripheral devices. 8. BINDING ARBITRATION AND CLASS ACTION WAIVER. This Section applies if you live in (or, if a business, your principal place of business is in) the United States. If you and Microsoft have a dispute, you and Microsoft agree to try for 60 days to resolve it informally. If you and Microsoft can’t, you and Microsoft agree to binding individual arbitration before the American Arbitration Association under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed; nor is combining individual proceedings without the consent of all parties. The complete Arbitration Agreement contains more terms and is at http://aka.ms/arb-agreement-1. You and Microsoft agree to these terms. 9. ENTIRE AGREEMENT. These Terms, and any other terms Microsoft may provide for supplements, updates, or third-party applications, is the entire agreement for the SDK. 10. APPLICABLE LAW AND PLACE TO RESOLVE DISPUTES. If you acquired the SDK in the United States or Canada, the laws of the state or province where you live (or, if a business, where your principal place of business is located) govern the interpretation of these Terms, claims for its breach, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of laws principles, except that the FAA governs everything related to arbitration. If you acquired the SDK in any other country, its laws apply, except that the FAA governs everything related to arbitration. If U.S. federal jurisdiction exists, you and Microsoft consent to exclusive jurisdiction and venue in the federal court in King County, Washington for all disputes heard in court (excluding arbitration). If not, you and Microsoft consent to exclusive jurisdiction and venue in the Superior Court of King County, Washington for all disputes heard in court (excluding arbitration). 11. CONSUMER RIGHTS; REGIONAL VARIATIONS. These Terms describe certain legal rights. You may have other rights, including consumer rights, under the laws of your state, province, or country. Separate and apart from your relationship with Microsoft, you may also have rights with respect to the party from which you acquired the SDK. These Terms do not change those other rights if the laws of your state, province, or country do not permit it to do so. 12. DISCLAIMER OF WARRANTY. THE SDK IS LICENSED “AS IS.” YOU BEAR THE RISK OF USING IT. MICROSOFT GIVES NO EXPRESS WARRANTIES, GUARANTEES, OR CONDITIONS. TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, MICROSOFT EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 13. LIMITATION ON AND EXCLUSION OF DAMAGES. IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES DESPITE THE PRECEDING DISCLAIMER OF WARRANTY, YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES. This limitation applies to (a) anything related to the SDK, software, services, content (including code) on third party Internet sites, or third party applications; and (b) claims for breach of contract, warranty, guarantee, or condition; strict liability, negligence, or other tort; or any other claim; in each case to the extent permitted by applicable law. It also applies even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your state, province, or country may not allow the exclusion or limitation of incidental, consequential, or other damages.

14. CONFIDENTIAL INFORMATION. The SDK, including its user interface, features and documentation, is confidential and proprietary to Microsoft and its suppliers. a) Use. For five years after installation of the SDK or its commercial release, whichever is first, you may not disclose confidential information to third parties. You may disclose confidential information only to your employees and consultants who need to know the information. You must have written agreements with them that protect the confidential information at least as much as these Terms. b) Survival. Your duty to protect confidential information survives these Terms. c) Exclusions. You may disclose confidential information in response to a judicial or governmental order. You must first give written notice to Microsoft to allow it to seek a protective order or otherwise protect the information. Confidential information does not include information that: i. becomes publicly known through no wrongful act; ii. you received from a third party who did not breach confidentiality obligations to Microsoft or its suppliers; or iii. you developed independently.