Term of use

1. License to Offerings

(1) License grant. Offerings are licensed and not sold. Upon Microsoft’s acceptance of an Order, and subject to Customer’s compliance with this Agreement, Publisher grants Customer a nonexclusive and limited license to use the ordered Offerings. These licenses are solely for Customer’s use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

(2) Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order,unless renewed. Licenses granted for metered Offerings billed periodically based on usage continue as long as Customer continues to pay for its usage ofthe Offerings. All other licenses become perpetual upon payment in full.

(3) End Users. Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings thatdoes not comply with this Agreement.

(4) Affiliates. Customer may order Offerings for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Publisher. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s).

(5) Reservationof Rights. Publisher reserves all rights not expressly granted in thisAgreement. Offerings are protected by copyright and other intellectual propertylaws and international treaties. No rights will be granted or implied by waiveror estoppel. Rights to access or use Offerings on a device do not give Customerany right to implement Publisher’s patents or other intellectual property inthe device itself or in any other software or devices.

(6) Restrictions.Except as expressly permitted in this Agreement, Documentation or an Order,Customer must not (and is not licensed to): (1) copy, modify, reverse engineer,decompile, or disassemble any Offering, or attempt to do so; (2) install or useany third-party software or technology in any way that would subjectPublisher’s intellectual property or technology to any other license terms; (3)work around any technical limitations in an Offering or restrictions inDocumentation; (4) separate and run parts of an Offering on more than onedevice; (5) upgrade or downgrade parts of an Offering at different times; (6)use an Offering for any unlawful purpose; (7) transfer parts of an Offeringseparately; or (8) distribute, sublicense, rent, lease, or lend any Offerings,in whole or in part, or use them to offer hosting services to a third party.

(7) License transfers. Customer may onlytransfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a thirdparty solely in connection with the transfer of hardware to which, or employeesto whom, the licenses have been assigned as part of (A) a divestiture of all orpart of an Affiliate or (B) a merger involving Customer or an Affiliate. Uponsuch transfer, Customer must uninstall and discontinue using the licensedOffering and render any copies unusable. Customer must notify Publisher of aLicense transfer and provide the transferee a copy of this Agreement and anyother documents necessary to show the scope, purpose, and limitations of thelicenses transferred. Attempted license transfers that do not comply with thissection are void.

(8) Feedback. Any Feedback is givenvoluntarily, and the provider grants to the recipient, without charge, anon-exclusive license under provider’s owned or controlled non-patentintellectual property rights to make, use, modify, distribute, andcommercialize the Feedback as part of any of recipient’s products and services,in whole or in part and without regard to whether such Feedback is marked orotherwise designated by the provider as confidential. The provider retains allother rights in any Feedback and limits the rights granted under this sectionto licenses under its owned or controlled non-patent intellectual propertyrights in the Feedback (which do not extend to any technologies that may benecessary to make or use any product or service that incorporates, but are notexpressly part of, the Feedback, such as enabling technologies).

2. Privacy

(1) EU Standard Contractual Clauses. To the extentapplicable, the parties will abide by the requirements of European EconomicArea and Swiss data protection law regarding the collection, use, transfer,retention, and other processing of Personal Data from the European EconomicArea and Switzerland. All transfers of Customer Data out of the European Union,European Economic Area, and Switzerland will be governed by the StandardContractual Clauses, as designated by the European Commission, made availableby the Publisher at the applicable URL for such terms or as otherwisecommunicated to Customer.

(2) Personal Data. Customer consents to theprocessing of Personal Data by Publisher and its Affiliates, and theirrespective agents and Subcontractors, as provided in this Agreement. Beforeproviding Personal Data to Publisher, Customer will obtain all requiredconsents from third parties (including Customer’s contacts, partners,distributors, administrators, and employees) under applicable privacy and DataProtection Laws.

(3) Processing of Personal Data; GDPR. To the extentPublisher is a processor or subprocessor of Personal Data subject to the GDPR,the Standard Contractual Clauses govern that processing and the parties alsoagree to the following terms in this subsection (“Processing of Personal Data;GDPR”):
a) Processor and Controller Roles and Responsibilities. Customerand Publisher agree that Customer is the controller of Personal Data andPublisher is the processor of such data, except when (a) Customer acts as aprocessor of Personal Data, in which case Publisher is a subprocessor or (b)stated otherwise in any Offering-specific terms. Publisher will processPersonal Data only on documented instructions from Customer. In any instancewhere the GDPR applies and Customer is a processor, Customer warrants toPublisher that Customer’s instructions, including appointment of Processor as aprocessor or subprocessor, have been authorized by the relevant controller.

b) Processing Details. The partiesacknowledge and agree that: (1) the subject-matter of the processing is limitedto Personal Data within the scope of the GDPR; (2) the duration of theprocessing will be for the duration of the Customer’s right to use the Offeringand until all Personal Data is deleted or returned in accordance with Customerinstructions or the terms of this Agreement; (3) the nature and purpose of theprocessing will be to provide the Offering pursuant to this Agreement; (4) thetypes of Personal Data processed by the Offering include those expresslyidentified in Article 4 of the GDPR; and (5) the categories of data subjectsare Customer’s representatives and end users, such as employees, contractors,collaborators, and customers, and other data subjects whose Personal Data iscontained within any data made available to Publisher by Customer.

c) Data Subject Rights; Assistance with Requests. Publisherwill make information available to Customer in a manner consistent with thefunctionality of the Offering and Publisher’s role as a processor of PersonalData of data subjects and the ability to fulfill data subject requests toexercise their rights under the GDPR. Publisher will comply with reasonablerequests by Customer to assist with Customer’s response to such a data subjectrequest. If Publisher receives a request from Customer’s data subject toexercise one or more of its rights under the GDPR in connection with anOffering for which Publisher is a data processor or subprocessor, Publisherwill redirect the data subject to make its request directly to Customer.Customer will be responsible for responding to any such request including,where necessary, by using the functionality of the Offering. Publisher willcomply with reasonable requests by Customer to assist with Customer’s responseto such a data subject request.

d) Use of Subprocessors. Customer consents toPublisher using the subprocessors listed at the applicable Publisher URL or asotherwise communicated to Customer. Publisher remains responsible for itssubprocessors’ compliance with the obligations herein. Publisher may update itslist of subprocessors from time to time, by providing Customer at least 14-daysnotice before providing any new subprocessor with access to Personal Data. IfCustomer does not approve of any such changes, Customer may terminate anysubscription for the affected Offering without penalty by providing, prior toexpiration of the notice period, written notice of termination that includes anexplanation of the grounds for non-approval.

e) Records of Processing Activities. Publisherwill maintain all records required by Article 30(2) of the GDPR and, to theextent applicable to the processing of Personal Data on behalf of Customer,make them available to Customer upon request.

3. Confidentiality

(1) Confidential Information. “ConfidentialInformation” is non-public information that is designated “confidential” orthat a reasonable person should understand is confidential, including, but notlimited to, Customer Data, the terms of this Agreement, and Customer’s accountauthentication credentials. Confidential Information does not includeinformation that: (1) becomes publicly available without a breach of aconfidentiality obligation; (2) the receiving party received lawfully fromanother source without a confidentiality obligation; (3) is independentlydeveloped; or (4) is a comment or suggestion volunteered about the otherparty’s business, products or services.

(2) Protection of Confidential Information. Each party will takereasonable steps to protect the other’s Confidential Information and will usethe other party’s Confidential Information only for purposes of the parties’business relationship. Neither party will disclose Confidential Information tothird parties, except to its Representatives, and then only on a need-to-knowbasis under nondisclosure obligations at least as protective as this Agreement.Each party remains responsible for the use of Confidential Information by itsRepresentatives and, in the event of discovery of any unauthorized use ordisclosure, must promptly notify the other party.

(3) Disclosure required by law. A party may disclose the other’sConfidential Information if required by law, but only after it notifies theother party (if legally permissible) to enable the other party to seek aprotective order.

(4) Duration of Confidentiality obligation. Theseobligations apply: (1) for Customer Data, until it is deleted by Publisher; and(2) for all other Confidential Information, for a period of five years after aparty receives the Confidential Information.

4. SLAs

Publisher may offer furtheravailability and support obligations for an Offering. Such service levelagreement (“SLA”) will be made available by the Publisher at the applicable URLfor such SLA or as otherwise communicated to Customer.

5. Verifying compliance

Customer must keep records relatingto Offerings it and its Affiliates use or distribute. At Publisher’s expense,Publisher may verify Customer’s and its Affiliates’ compliance with thisAgreement at any time upon 30 days’ notice. To do so, Publisher may engage anindependent auditor (under nondisclosure obligations) or ask Customer tocomplete a self-audit process. Customer must promptly provide any informationand documents that Publisher or the auditor reasonably requests related to theverification and access to systems running the Offerings. If verification orself-audit reveals any unlicensed use, Customer must, within 30 days, ordersufficient licenses to cover the period of its unlicensed use. Without limitingPublisher’s other remedies, if unlicensed use is 5% or more of Customer’s totaluse of all Offerings, Customer must reimburse Publisher for its costs incurredin verification and acquire sufficient licenses to cover its unlicensed use at125% of the then-current Customer price or the maximum allowed under applicablelaw, if less. All information and reports related to the verification processwill be Confidential Information and used solely to verify compliance. Nothing in this section limitsCustomer’s right to audit Publisher under the GDPR provisions.

6. Representation andwarranties

Publisher continuouslyrepresents and warrants that:
a) it has full rights and authority to enter into,perform under, and grant the rights in, this Agreement;
b) its performance will not violate any agreement orobligation between it and any third party;
c) the Offering will substantially conform to the Documentation;
d) the Offering will not: (1) to the best ofPublisher’s knowledge, infringe or violate any third party patent, copyright,trademark, trade secret, or other proprietary right; or (2) contain viruses orother malicious code that will degrade or infect any products, services,software, or Customer’s network or systems, and
e) while performing under this Agreement, Publisherwill comply with law, including Data Protection Laws and Anti-Corruption Laws,and will provide training to its employees regarding Anti-Corruption Laws.

Disclaimer. Except as expresslystated in this Agreement, the Offering is provided as is. To the maximum extentpermitted by law, Publisher disclaims any and all other warranties (express,implied or statutory, or otherwise) including of merchantability or fitness fora particular purpose, whether arising by a course of dealing, usage or tradepractice, or course of performance.

7. Defense of third-party claims

(1) By Customer. Customer will defend Publisherand its Affiliates from and against any and all third party claims, actions,suits, proceedings arising from or related to Customer’s or any authorizeduser’s violation of this Agreement or user terms (a “Claims AgainstPublisher”), and will indemnify Publisher and its Affiliates for all reasonableattorney’s fees incurred and damages and other costs finally awarded againstPublisher or its Affiliates in connection with or as a result of, and foramounts paid by Publisher or its Affiliates under a settlement Customer approvesof in connection with a Claim Against Publisher. Publisher must provideCustomer with prompt written notice of any Claims Against Publishers and allowCustomer the right to assume the exclusive defense and control of the claim,and cooperate with any reasonable requests assisting Customer’s defense andsettlement of such matter.

(2) By Publisher. Publisher will defend Customer from and againstany and all third party claims, actions, suits, proceedings, and demandsalleging that the use of the Offering as permitted under the Contract infringesor misappropriates a third party’s intellectual property rights (a “ClaimAgainst Customer”), and will indemnify Customer for all reasonable attorney’sfees incurred and damages and other costs finally awarded against Customer inconnection with or as a result of, and for amounts paid by Customer under asettlement Publisher approve of in connection with a Claim Against Customer;provided, however, that the Publisher has no liability if a Claim AgainstCustomer arises from: (1) Customer Data or non-Publisher products, includingthird-party software; and (2) any modification, combination or development ofthe Offering that is not performed or authorized in writing by Publisher,including in the use of any application programming interface (API). Customermust provide Publisher with prompt written notice of any Claim Against Customerand allow Publisher the right to assume the exclusive defense and control, andcooperate with any reasonable requests assisting Publisher’s defense andsettlement of such matter. This section states Publisher sole liability withrespect to, and Customer’s exclusive remedy against Publisher for, any ClaimAgainst Customer.

(3) Notwithstanding anything contained in the abovesubsections (a) and (b), (1) an indemnified party will always be free to chooseits own counsel if it pays for the cost of such counsel; and (2) no settlementmay be entered into by an indemnifying party, without the express writtenconsent of the indemnified parties (such consent not to be unreasonablywithheld), if: (A) the third party asserting the claim is a government agency;(B) the settlement arguably involves the making of admissions by theindemnified parties; (C) the settlement does not include a full release ofliability for the indemnified parties; or (D) the settlement includes termsother than a full release of liability for the indemnified parties and thepayment of money.

8. Limitation of liability

For each Offering, each party’smaximum, aggregate liability to the other under this Agreement is limited todirect damages finally awarded in an amount not to exceed the amounts Customerwas required to pay for the Offerings during the term of the applicablelicenses, subject to the following: 
(1) Subscriptions. For Offerings ordered on asubscription basis, Publisher’s maximum liability to Customer for any incidentgiving rise to a claim will not exceed the amount Customer paid for theOffering during the 12 months before the incident.

(2) Free Offerings and distributable code. ForOfferings provided free of charge and code that Customer is authorized toredistribute to third parties without separate payment to Publisher,Publisher’s liability is limited to direct damages finally awarded up toUS$5,000.

(3) Exclusions. In no event will either partybe liable for indirect, incidental, special, punitive, or consequentialdamages, or loss of use, loss of profits, or interruption of business, howevercaused or on any theory of liability.

(4) Exceptions. No limitation orexclusions will apply to liability arising out of either party’s: (1)confidentiality obligations (except for liability related to Customer Data,which will remain subject to the limitations and exclusions

9. Pricing and payment

Customer’s pricing andpayment terms for a given order are set forth and governed by HiddenSmiles.

10. Term and termination

(1) Term. This Agreement is effectiveuntil terminated by a party, as described below. The term for each Order willbe set forth therein.

(2) Termination without cause. Unless otherwise setforth in an Order, either party may terminate this Agreement or any Order withoutcause on 60 days’ notice. Termination without cause will not affect Customer’sperpetual licenses, and licenses granted on a subscription basis will continuefor the duration of the subscription period(s), subject to the terms of thisAgreement. Publisher will not provide refunds or credits for any partialsubscription period(s) if the Agreement or an Order is terminated withoutcause.

(3) Termination for cause. Without limitingother remedies it may have, either party may terminate this Agreement or anyOrder immediately on notice if (i) the other party materially breaches theAgreement or an Order, and fails to cure the breach within 30 days afterreceipt of notice of the breach; or (ii) the other party becomes Insolvent.Upon such termination, the following will apply:
a) All licenses granted under this Agreement willterminate immediately except for fully-paid, perpetual licenses. b) All amounts due under any unpaid invoices willbecome due and payable immediately. For metered Offerings billed periodicallybased on usage, Customer must immediately pay for unpaid usage as of thetermination date. c) If Publisher is in breach, Customer will receive acredit for any subscription fees, including amounts paid in advance for unusedconsumption for any usage period after the termination date.

(4) Suspension. Publisher may suspend use ofthe Offering without terminating this Agreement during any period of materialbreach. Publisher will give Customer reasonable notice before suspending theOffering. Suspension will only be to the extent reasonably necessary.

(5) Survival. The terms of this Agreement,including the applicable Order, that are likely to require performance, or haveapplication to events that may occur, after the termination or expiration ofthis Agreement or any Order, will survive termination or expiration, includingall indemnity obligations and procedures.

11. Miscellaneous

(1) Entire Agreement. This Agreement supersedes allprior and contemporaneous communications, whether written or oral, regardingthe subject matter covered in this Agreement. If there is a conflict betweenany parts of this Agreement, the following order of precedence will apply:
a) Order;
b) this Agreement;
c) Service Level Agreement (SLA); and
d) Documentation.

(2) Independent contractors. The parties areindependent contractors. Customer and Publisher each may develop productsindependently without using the other’s Confidential Information.

(3) Agreement not exclusive. Customer is free toenter into agreements to license, use, and promote the services of others.

(4) Amendments. Unless otherwise agreed in awriting signed by both parties, Publisher will not change the terms of thisAgreement, including privacy terms, during the term of this Agreement.

(5) Assignment. Either party may assign thisAgreement to an Affiliate, but it must notify the other party in writing of theassignment. Customer consents to the assignment to an Affiliate or third party,without prior notice, of any rights Publisher may have under this Agreement toreceive payment and enforce Customer’s payment obligations, and all assigneesmay further assign such rights without further consent. Furthermore, eitherparty may assign this Agreement without the consent of the other party inconnection with a merger, reorganization, acquisition, or other transfer of allor substantially all of such party’s assets. Any other proposed assignment ofthis Agreement must be approved by the non-assigning party in writing.Assignment will not relieve the assigning party of its obligations under theassigned Agreement. Any attempted assignment without required approval will bevoid.

(6) Severability. If any part of this Agreement isheld to be unenforceable, the rest of the Agreement will remain in full forceand effect.

(7) Waiver. Failure to enforce any provisionof this Agreement will not constitute a waiver. Any waiver must be in writingand signed by the waiving party.

(8) No third-party beneficiaries. This Agreement doesnot create any third-party beneficiary rights except as expressly provided byits terms.

(9) Notices. Notices must be in writing andwill be treated as delivered on the date received at the address, date shown onthe return receipt, email transmission date, or date on the courier or faxconfirmation of delivery. Notices to Publisher must be sent to the addressstated in the Order. Notices to Customer will be sent to the individual at theaddress Customer identifies on its account as its contact for notices.Publisher may send notices and other information to Customer by email or otherelectronic form.

(10) Applicable law.
a) United States and Canada. 
If you acquired theOffering in the United States or Canada, the laws of the state or provincewhere you live (or, if a business, where your principal place of business islocated) govern the interpretation of these terms, claims for breach of them,and all other claims (including consumer protection, unfair competition, andtort claims), regardless of conflict of law principles.
b) Outside the United States and Canada. Ifyou acquired the Offering in any other country, the laws of that country apply.

(11) Order of precedence. The body of thisAgreement will take precedence over any conflicting terms in other documentsthat are part of this Agreement that are not expressly resolved in thosedocuments. Terms in an amendment control over the amended document and anyprior amendments concerning the same subject matter.

(12) Government procurement rules. By accepting thisAgreement, Customer represents and warrants that: (1) it has complied and willcomply with all applicable government procurement laws and regulations; (2) itis authorized to enter into this Agreement; and (3) this Agreement satisfiesall applicable procurement requirements.

(13) Compliance with laws. Publisher willcomply with all laws and regulations applicable to its provision of theOfferings. Publisher will obtain and maintain any approvals, licenses, filings,or registrations necessary to its performance, and will comply with all law(including law related to export, corruption, money laundering, or anycombination of these). Customer must also comply with laws applicable to theiruse of the Offerings.

(14) Construction. Neither party has entered thisAgreement in reliance on anything not contained or incorporated in it. ThisAgreement is in English only. Any translation of this Agreement into anotherlanguage is for reference only and without legal effect. If a court ofcompetent jurisdiction finds any term of the Agreement unenforceable, theAgreement will be deemed modified as necessary to make it enforceable, and therest of the Agreement will be fully enforced to effect the parties’ intent. Listsof examples following “including”, “e.g.”,“for example”, or the like are interpreted to include “without limitation,”unless qualified by words such as “only” or “solely.” This Agreement will beinterpreted according to its plain meaning without presuming that it shouldfavor either party. Unless stated or context requires otherwise:
a) all internal references are to this Agreement andits parties;
b) all monetary amounts are expressed and, ifapplicable, payable, in U.S. dollars;
c) URLs are understood to also refer to successors,localizations, and information or resources linked from within websites atthose URLs;
d) a party’s choices under this Agreement are in itssole discretion, subject to any implied duty of good faith;
e) “written” or “in writing” means a paper documentonly, except where email is expressly authorized;
f) “days” means calendar days;
g) “may” means that the applicable party has a right,but not a concomitant duty,
h) “partner,” if used in this Agreement or relateddocuments, is used in its common, marketing sense and does not imply apartnership;
i) “current” or “currently” means “as of the EffectiveDate” but “then-current” means the present time when the applicable right isexercised or performance rendered or measured;
j) “notify” means to give notice under subsection (i)above; and
k) a writing is “signed” when it has been hand-signed(i.e., with a pen) or signed via an electronic signature service by a dulyauthorized representative of the signing party.

12. Definitions

“Affiliate” means any legal entity thatcontrols, is controlled by, or is under common control with a party.

“Anti-Corruption Laws” means all laws against fraud,bribery, corruption, inaccurate books and records, inadequate internal controls,money-laundering, and illegal software, including the U.S. Foreign CorruptPractices Act.

“Control” means ownership of more than a50% interest of voting securities in an entity or the power to direct themanagement and policies of an entity.

“Confidential Information” is defined in the“Confidentiality” section.

“Customer Data” means all data, including alltext, sound, software, image or video files that are provided to Publisher orits Affiliates by, or on behalf of, Customer and its Affiliates through use ofthe Offering. Customer Data does not include Support Data. “Support Data” meansall data, including all text, sound, video, image files, or software, that areprovided to Publisher by or on behalf of Customer (or that Customer authorizesPublisher to obtain from an Offering) through an engagement with Publisher toobtain technical support for the Offering covered under this Agreement.

“Data Protection Law” means any law applicable toPublisher or Customer, relating to data security, data protection and/orprivacy, including Regulation (EU) 2016/679 of the European Parliament and ofthe Council of 27 April 2016 on the protection of natural persons with regardto processing of personal data and the free movement of that data (“GDPR”), andany implementing, derivative or related legislation, rule, regulation, andregulatory guidance, as amended, extended, repealed and replaced, orre-enacted.

“Documentation” means all user manuals,handbooks, training material, requirements, and other written or electronicmaterials Publisher makes available for, or that result from use of, theOffering.

“End User” means any person Customerpermits to use an Offering or access Customer Data.

“Feedback” means ideas, suggestions,comments, input, or know-how, in any form, that one party provides to the otherin relation to recipient’s Confidential Information, products, or services.Feedback does not include sales forecasts, future release schedules, marketingplans, financial results, and high-level plans (e.g., feature lists) for futureproducts.

“Insolvent” means admitting in writing theinability to pay debts as they mature; making a general assignment for thebenefit of creditors; suffering or permitting the appointment of a trustee orreceiver for all or any of its (i.e., the non-terminating party’s) assets,unless such appointment is vacated or dismissed within 60 days from the date ofappointment; filing (or having filed) any petition as a debtor under anyprovision of law relating to insolvency, unless such petition and all relatedproceedings are dismissed within 60 days of such filing; being adjudicatedinsolvent or bankrupt; having wound up or liquidated; or ceasing to carry onbusiness.

“Offering” means all services, websites(including hosting), solutions, platforms, and products identified in an Orderand that Publisher makes available under or in relation to this Agreement,including the software, equipment, technology, and services necessary forPublisher to provide the foregoing. Offering availability may vary by region.

“Order” means an ordering document usedto transact the Offering via the Marketplace.

“Personal Data” means any information relatingto an identified or identifiable natural person.

“Representatives” means a party’s employees,Affiliates, contractors, advisors and consultants.

“Standard Contractual Clauses” means the standarddata protection clauses for the transfer of personal data to processorsestablished in third countries which do not ensure an adequate level of dataprotection, as described in Article 46 of the GDPR.

“Subcontractor” means any third party: (1) towhom Publisher delegates its obligations under this Agreement, including aPublisher Affiliate not contracting directly with Customer through an Order; or(2) who, in performing under a contract between it and Publisher or a PublisherAffiliate, stores, collects, transfers or otherwise processes Personal Data(obtained or accessed in connection with performing under this Agreement) or otherCustomer Confidential Information.

“use” means to copy, download,install, run, access, display, use or otherwise interact with.

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