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Microsoft Tag Scanning SDK Commercial Agreement


Last updated July 25, 2011


Please read these terms carefully. These terms are a legally binding contract (“Agreement”) between the entity who is the owner/distributor of the Application using the Tag Scanning SDK (“Company”) and Microsoft Corporation (“Microsoft,” “we,” “us,” or “our”). The Agreement governs Company’s use of the Microsoft Tag Scanning SDK defined below. By using or accessing the Tag Scanning SDK, Company must agree to the terms of the Agreement. If the Company does not agree to these terms, the Company may not use the Tag Scanning SDK. Company acknowledges and understands that this Agreement does not confer any rights to Company to receive a Trial SDK Key or Commercial SDK Key or distribute an Application unless Microsoft provides approval as set forth in this Agreement. The party accepting this Agreement represents that it has the legal authority to bind the Company to this Agreement.

This Agreement supersedes any end user license agreements provided with the Tag Scanning SDK.


1. DEFINITIONS

Application means an application that Company builds using the Tag Scanning SDK. In order for Company to obtain a Commercial SDK Key and distribute Applications, Company must have specific prior approval from Microsoft in writing (e-mail or otherwise) regarding the concept and purpose of the Application. Any Application that Microsoft has so approved and uses a Commercial SDK Key is a Distributable Application.
Application Marketplace means any third party online or mobile marketplaces through which Applications may be distributed, including the Apple App Store and the Google Android Market.
Application User means an end user who uses Company’s Distributable Application.
Commercial SDK Key means a production Tag Scanning SDK key issued by Microsoft to Company that enables a Distributable Application to make use of the Tag Resolution Service. A unique Commercial SDK Key will be provided for each Distributable Application.
Requirements means the Microsoft Tag Application Requirements provided by Microsoft through the Microsoft Tag Scanning SDK site.
Tag means a Microsoft proprietary 2D barcode that is created by Microsoft customers through the Microsoft Tag creation service.
Tag Content means data provided by a Tag creator to Microsoft and then delivered to end users from the Tag Resolution Service to the Application when a Tag is scanned (e.g. URL website address, v-card, or text).
Tag Resolution Service means the portions of the Microsoft Tag service which responds to an Application with Tag Content when an Application scans a Tag.
Tag Scanning SDK means the Microsoft Tag Scanning Software Development Kit that enables Company to build Applications, which makes use of Tags and other features of the Microsoft Tag system and Tag Resolution Service, as further described in the Tag Scanning SDK documentation.
Trial SDK Key means a key for use by Company when developing and testing Applications using the Tag Scanning SDK, prior to obtaining a Commercial SDK Key. Trial SDK Keys provide for up to 100 Tag scans per day.

2. LICENSES

2.1 Tag Scanning SDK.


  • Right to Develop. Company may install and use (a) any number of copies of the Tag Scanning SDK and its documentation, (b) a Trial SDK Key and, (c) upon approval, one or more Commercial SDK Keys, each in order to design, develop and test Applications. The Tag Scanning SDK contains code that Company is permitted to distribute in Distributable Applications, as further described below.
  • Right to Use and Distribute. The following additional distribution rights are granted to Company with respect to Distributable Applications:
  • Company may copy and distribute the Tag Scanning SDK files required for the Application to operate, plus other files designated as distributable (if any).
  • Sample Code. Company may modify, copy, and distribute the object code form of code marked as “sample” that is included in the Tag Scanning SDK.
  • Limitations. Company may not:
    • alter any copyright, trademark or patent notice in the distributable code;
    • use Microsoft’s trademarks other than permitted in Section 4 of this Agreement;
    • include distributable code in malicious, deceptive or unlawful programs; or
    • modify or distribute any Tag Scanning SDK software so that any part of it becomes subject to an Excluded License. An Excluded License is a software license that requires, as a condition of use, modification or distribution, that the software or other software combined and/or distributed with it be
      • disclosed or distributed in source code form;
      • licensed for the purpose of making derivative works; or
      • redistributable at no charge.
  • Distributable Application and Notice. Upon Microsoft’s request, Company will provide Microsoft with a binary copy of any Distributable Application by email with the information set forth in the Requirements. In any event, Company will provide notice to Microsoft as set forth in the Requirements prior to any distribution of a Distributable Application to any third party.

2.2 Tag Resolution Service License. With respect to the use of the Tag Scanning SDK under this Agreement, Company may use the Tag Resolution Service solely for the purposes of (i) developing and testing Company’s Application using the Tag Scanning SDK; (ii) demonstrating Applications; and (iii) supporting Distributable Applications as set forth in Section 2.1 above and permitting Application Users to use the Application.


2.3 Restrictions. The Tag Scanning SDK and Tag Resolution Service are licensed, not sold. This Agreement only gives Company some rights to use the Tag Scanning SDK. Microsoft reserves all other rights. Unless applicable law gives Company more rights despite this limitation, Company may use the Tag Scanning SDK and Tag Resolution Service only as expressly permitted in this Agreement. In doing so, Company must comply with any technical limitations in the Tag Scanning SDK and Tag Resolution Service that only allow Company to use them in certain ways. Company may not

  • reverse engineer, decompile or disassemble the Tag Scanning SDK and Tag Resolution Service, except and only to the extent that applicable law expressly permits, despite this limitation;
  • make available the Tag Scanning SDK for others to copy;
  • share any Trial SDK Keys or Commercial SDK Keys;
  • rent, resell, make available for profit, lease or lend the Tag Scanning SDK or Tag Resolution Service;
  • transfer the Tag Scanning SDK or this Agreement to any third party except as permitted in this Agreement; or
  • distribute Applications that do not meet all of the requirements of Distributable Applications.

In addition, Company must follow any use or other restrictions as set forth in the Requirements.


2.4 Third Party Developers. Company may allow third parties to use the Tag Scanning SDK to develop Applications on Company’s behalf, provided that Company is responsible for the performance of this Agreement and any acts or omissions of such third parties using the Tag Scanning SDK on Company’s behalf, including any acts or omissions that would otherwise be a breach of this Agreement.

3. APPLICATION REQUIREMENTS AND APPLICATION MARKETPLACES


3.1 Company must comply with the Requirements when designing, developing, testing and distributing the Application. The Requirements supplement this Agreement and provide detailed requirements related to the Application such as content guidelines, technical specifications, and notification guidelines.


3.2 Any Distributable Application must comply with the applicable laws of each jurisdiction in which the Distributable Application is distributed, including (i) export control laws and (ii) laws and regulations relating to collection and use of any device and information collected by the Distributable Application.


3.3 Company may distribute the Distributable Application through Company’s own distribution channels (such as web sites, devices, or physical media) and/or through any Application Marketplace subject to Company’s compliance with the distribution requirements of any Application Marketplace or other operating system requirements. Company and any Distributable Application must also comply with all terms and conditions set forth in any Application Marketplaces through which Company wishes to distribute the Distributable Application. Company is solely responsible for ensuring that the Distributable Application, as distributed, complies with such laws and terms and conditions. Microsoft will not distribute any Application on Company’s behalf under this Agreement. Microsoft does not guarantee that it will make any changes in the Tag Scanning SDK or Tag Resolution Service for compliance with any Application Marketplace terms and conditions.


3.4 The Distributable Application must be distributed pursuant to an End User License Agreement (EULA) between Company and the Application User, containing terms as set forth in the Requirements.


3.5 Company acknowledges that Microsoft has the right to list Company on a list of customers using the Tag Scanning SDK and Tag Resolution Service.

4. Microsoft Tag TRADEMARK License Grant & Restrictions


4.1 Licensed Marks. Microsoft grants Company, for the duration of this Agreement, a non-exclusive, non-transferable, royalty-free license to use the “Powered by Microsoft Tag” logo depicted in the Microsoft Tag branding and logo usage guidelines and requirements (Microsoft Marks), solely in connection with a Distributable Application and Company’s marketing and promotional materials associated with a Distributable Application. Company must use the Microsoft Marks as described in the Microsoft Tag branding and logo usage guidelines as set forth on the Microsoft Tag SDK website or otherwise as provided to Company. Company shall cease all use of the Microsoft Marks immediately when Company is no longer authorized to distribute the Distributable Application or when Company removes the Tag Scanning SDK from the Distributable Application. Microsoft reserves all rights not expressly granted herein.


4.2 Restrictions. Company may not (i) use the Microsoft Marks in a way that may cause confusion about ownership of the Microsoft Marks or whether Company’s Distributable Application is a Microsoft product; (ii) do or say anything that implies affiliation with, or sponsorship, endorsement or approval by Microsoft other than as contemplated by this Agreement; (iii) register, adopt or use any name, trademark, domain name or other designation that includes or violates Microsoft’s rights in the Microsoft Marks or any Microsoft trademarks in the Microsoft Marks; or (iv) use the Microsoft Marks in a way that would damage Microsoft’s reputation or goodwill in the Microsoft Marks.


4.3 Ownership. Microsoft is the sole owner of the Microsoft Marks and associated goodwill, and the sole beneficiary of the goodwill associated with Company’s use of the Microsoft Marks. Company will not acquire any right, title or interest in the Microsoft Marks because of Company’s use of the Microsoft Marks. Company hereby assigns and will assign to Microsoft in the future any rights Company may acquire in the Microsoft Marks as a result of Company’s use of the Microsoft Marks under this license, along with the associated goodwill. Company will reasonably assist Microsoft at Microsoft’s expense in protecting the Microsoft Marks. Microsoft will determine, in its sole discretion, whether to take legal action to enforce or defend its rights in the Microsoft Marks and will control any legal action concerning the Microsoft Marks.


4.4 Quality Standards. Company agrees that any Distributable Application and any related advertising and marketing materials that contain the Microsoft Marks must (i) meet all terms of this Agreement and the Requirements; (ii) meet or exceeds standards of quality and performance generally accepted in the industry; (iii) be at least commensurate with the quality of similar products and advertising or marketing materials distributed by Company, and (iv) comply with all applicable laws, rules, and regulations (collectively, the Quality Standards). Company will cooperate with Microsoft to enable Microsoft’s review of Company’s use of the Microsoft Marks and compliance with the Quality Standards. Company will promptly correct any improper use of the Microsoft Marks and any failure to comply with the Quality Standards, upon reasonable notice from Microsoft.


5. OTHER TERMS RELATING TO COMPANY’S USE OF THE TAG SCANNING SDK

5.1 In using the Tag Scanning SDK and Tag Resolution Service, Company will comply with any codes of conduct, implementation guidelines or other notices of rules for the Tag Scanning SDK and Tag Resolution Service that Microsoft provides. Company’s use and creation of Tags is subject to the Microsoft Tag Service and Tag Creation API Agreement (“Tag TOU”), currently available at http://tag.microsoft.com/tag-terms-of-use.aspx, or its successor. However, the requirement in the Tag TOU that Company must provide Microsoft’s then currently download service (currently designated as http://gettag.mobi) as the method for users to get the Microsoft Tag Reader is hereby waived for Tags that Company creates, so long as Company instead provides a link to the Distributable Application. Neither the Tag Scanning SDK nor the Tag Resolution Service is a Basic Feature under the Tag Service and Tag Creation API Agreement. Company’s use of the Tag Scanning SDK and Tag Resolution Service may be subject to other Microsoft terms and conditions, including those set forth in Microsoft’s anti-spam policy, available at http://go.microsoft.com/fwlink/?LinkId=117951, and the Microsoft Code of Conduct, available at http://explore.live.com/code-of-conduct.

Company’s use of the Tag Scanning SDK and Tag Resolution Service, and Company’s distribution of the Distributable Application may not and Company must not permit Application Users to:

  • Promote any of Company’s products or services in association with the Microsoft Tag service (including Tags) in a way which would confuse anyone about Microsoft’s ownership of the Microsoft Tag service or Microsoft Tag technology;
  • Defame, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy, data protection, and publicity) of Microsoft or others;
  • Include or provide a link to any web site or other material that contains, any inappropriate, hateful, adult, defamatory, obscene, indecent or unlawful topic, name, material or information;
  • Collect, post, disclose or otherwise make available, personally identifiable information of a third party, unless Company has permission to do so;
  • Distribute any material or information that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party (including rights of privacy or publicity) in any manner;
  • Violate any applicable laws, rules, or regulations;
  • Take any action that imposes an unreasonably or disproportionately large burden on the Tag Resolution Service, such burden being determined in Microsoft’s discretion;
  • Use the Microsoft Tag service in a way that harms Microsoft or Microsoft’s affiliates or suppliers;
  • Distribute unsolicited bulk messages or unsolicited commercial messages (spam);
  • Damage, disable, overburden, or impair the Microsoft Tag service (or the networks connected to it), or interfere with anyone’s use and enjoyment of the Microsoft Tag service;
  • Attempt, through hacking, password mining or any other means, to gain unauthorized access to the Microsoft Tag service, other accounts, computer systems or networks connected to any Microsoft server or to the Microsoft Tag service; or
  • Obtain or attempt to obtain, through the Microsoft Tag service, any materials or information through any means not intentionally made available through the Tag Resolution Service.

5.2 Responsibilities for the Application. Company is solely responsible and liable for its Application, and for any use of it by Application Users, and Microsoft has no obligation or liability with respect to such Application. Microsoft assumes no responsibility for any costs incurred by users related to the Application. Microsoft does not validate or control any Application nor take any responsibility for it. Microsoft does not claim ownership of the Application.


6. PRIVACY AND PROTECTION OF PERSONAL INFORMATION


6.1. Company’s Collection of User Information.

  1. Company is responsible for providing Application Users with adequate notice and obtaining any necessary consents for the information collection, use and other privacy practices applicable to the Application. Company must not use any information captured from or provided by the Tag Scanning SDK or the Application to re-identify any Application User to their personally identifiable information without their prior consent. Company’s use of the Application Users’ personally identifiable information must be limited by the scope of the consent Company receives from the Application Users. Personally identifiable information includes, without limitation, name, email address, and telephone number.
  2. Company must include a privacy policy with its Application. Company’s privacy policy must (a) comply with applicable laws and regulations; (b) inform Application Users of the information collected by Company’s Application and how that information is used, stored and disclosed; and (c) describe the controls that Application Users have over the use and sharing of their information.
  3. Users must be able to turn off location detection in an Application.

6.2. Microsoft’s Collection of Information.

  1. Tag Scanning SDK and Tag Resolution Service. Microsoft may make aggregated, anonymized data from Company’s use of the Tag Scanning SDK or Tag Resolution Service available to third parties in summary analytics, without identifying Company or individual users. The Privacy Statement and Windows Live ID Privacy Supplement (http://mobile.microsoft.com/tag/en-us/privacy.mspx and http://privacy.microsoft.com/en-us/windowsliveid.mspx) contain additional disclosures relating to the collection and use of Company’s information. All access to and use of the Tag Scanning SDK and the Tag Resolution Service are subject to the data practices set forth in the privacy terms in the privacy statements noted above and this Agreement. In particular, Microsoft may access or disclose information about Company, including the content of Company’s 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 Microsoft’s customers, including the enforcement of Microsoft’s agreements or policies governing Company’s use of the Tag Scanning SDK and Tag Resolution Service; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Microsoft’s employees, customers or the public. Access to and disclosure of the information described in the preceding sentence is at Microsoft’s sole and complete discretion. Information that is collected by or sent to Microsoft in connection with this Agreement or the use of the Tag Scanning SDK and Tag Resolution Service may be stored and processed in the United States or any other country in which Microsoft or its affiliates, subsidiaries, or service providers maintain facilities. 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, the European Economic Area, and Switzerland.
  2. End Users. Microsoft may collect and use information from Application Users under the terms of the Microsoft Tag privacy policy at http://mobile.microsoft.com/tag/en-us/privacy.mspx. Company must provide conspicuous notice to the Application Users of the Microsoft Tag privacy policy and obtain adequate consent to the policy from Application Users, both in a manner required by applicable law.

7. MEMBER ACCOUNT, PASSWORD, AND SECURITY

Use of the Tag Scanning SDK and Tag Resolution Service requires Company to open an account (Account) using Windows Live ID authentication. Company is responsible for compliance with the Windows Live ID terms and conditions or other terms of use as may be required to open an Account. Opening an Account requires Company to complete the registration process by providing Microsoft with current, complete and accurate information as prompted by the registration form. Company also will choose a password and a user name for both Microsoft Tag and Windows Live ID. Company is entirely responsible for maintaining the confidentiality of Company’s passwords and Account. Furthermore, Company is entirely responsible for any and all activities that occur under Company’s Account. Company agrees to notify Microsoft immediately of any unauthorized use of Company’s Account or any other breach of security. Microsoft will not be liable for any loss that Company may incur as a result of someone else using Company’s passwords or Account, either with or without Company’s knowledge. However, Company could be held liable for losses incurred by Microsoft or another party due to someone else using Company’s Account or passwords. Company may not use anyone else's Account at any time without the permission of the Account holder.

8. CHANGES TO THE TAG SCANNING SDK AND TAG RESOLUTION SERVICE

8.1. Microsoft may change the Tag Scanning SDK or Tag Resolution Service at any time and for any reason, including without limitation to remove, modify and add features; change APIs; change the Requirements; make changes that cause existing Tags or any parts of the Tag Scanning SDK or Tag Resolution Service to stop working; and/or subject features to different or additional terms and conditions. Microsoft may also require fees for any new features and previously free features not identified as Basic Features under the Tag Service and Tag Creation API Agreement. Microsoft will use commercially reasonable efforts to provide Company at least one hundred twenty (120) days’ notice prior to any changes that would materially affect Company’s use of the Tag Scanning SDK or the Tag Resolution Service under this Agreement. Microsoft may give this notice by providing e-mail notices, posting of changes of the web site, or other commercially reasonable means. Neither the Tag Scanning SDK nor the Tag Resolution Service is a Basic Feature under the Tag Service and Tag Creation API Agreement.


8.2. In some instances, updates to the Tag Scanning SDK, or changes or removal of all or portions of the Tag Resolution Service may be immediately required due to (i) law or regulation; (ii) an event of force majeure; (iii) an actual or threatened court action; or (iv) security issues. In the event of any updates for this reason, Microsoft will notify Company and identify such update as an “Urgent Update.”


8.3. Company is not required to revise its Application in response to updates or changes in the Tag Scanning SDK or the Tag Resolution Service; however, Company acknowledges that any changes made by Microsoft to the Tag Scanning SDK or Tag Resolution Service may cause the Tag Resolution Service functionality, including scanning and decoding, in the Application to fail. Microsoft will not be liable for any costs that Company incurs, or for lost profits or damages of any kind, related to any changes to the Tag Scanning SDK or the Tag Resolution Service. The rights to change the Tag Scanning SDK or Tag Resolution Service are in addition to Microsoft’s other rights in this Agreement and under law.

9. RESERVATION OF RIGHTS

Microsoft and Microsoft’s suppliers retain all right, title, and interest in and to the Tag Scanning SDK and Tag Resolution Service technology and all intellectual property rights in them.

10. FEEDBACK

If Company gives feedback about the Tag Scanning SDK or the Tag Resolution Service, Company gives to Microsoft, without charge, the right to use, share and commercialize Company’s feedback in any way and for any purpose. Company also gives to third parties, without charge, any patent rights needed for their products, technologies and services to use or interface with any specific parts of a Microsoft software or service that includes the feedback. Company will not give feedback that is subject to a license that requires Microsoft to grant any rights or make any payments to third parties because the feedback was incorporated into Microsoft’s software, documentation or other products. These rights survive this Agreement.

11. WARRANTIES

11.1 Company warrants and represents that any and all information that Company provides to Microsoft in signing up for an Account, creating an Application, and using the Tag Scanning SDK or Tag Resolution Service, including signing up for a Windows Live ID, is truthful, accurate, and in compliance with the terms of this Agreement. Company warrants, represents, and covenants to Microsoft that each Application (i) complies and will comply with all applicable laws and regulations; (ii) does not and will not infringe, misappropriate or otherwise violate any third party intellectual property right; (iii) does not and will not breach the rights of any person or entity, including, without limitation, rights of publicity or privacy, and is not defamatory; and (iv) does not and will not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity. Company also represents and warrants that Company has obtained any and all consents, approvals or licenses (including written consents of third parties where applicable) required for Company to submit and offer for distribution an Application under this Agreement and for an Application to access any Internet-based services, if any, to which the Application enables access. Company will not make any warranties about the Tag Scanning SDK or Tag Resolution Service to Application Users or any other party.


11.2 Microsoft provides the Tag Scanning SDK and Tag Resolution Service “as is,” “with all faults,” and “as available.” Microsoft does not guarantee the accuracy or timeliness of information available from the Tag Scanning SDK or Tag Resolution Service. Company acknowledges that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. Microsoft does not guarantee the Tag Scanning SDK or Tag Resolution Service will be uninterrupted, secure, or error-free, or that data loss will not occur. Microsoft and its affiliates, resellers, distributors, and vendors give no express warranties, guarantees, or conditions. Microsoft excludes any implied warranties, including for merchantability, satisfactory quality, fitness for a particular purpose, workmanlike effort, and non-infringement. Company may have certain rights under Company’s local law. Nothing in this Agreement is intended to affect those rights, if they are applicable.

12. SUPPORT

Microsoft is not obligated to provide support for the Tag Scanning SDK or Tag Resolution Service. In the event that Company has support inquiries, Company should send them to tagsupp@microsoft.com.

13. CONFIDENTIALITY

The Non-Disclosure Agreement entered into between the parties will apply to all Confidential Information exchanged under or in connection with this Agreement.

14. INDEMNITY

At Microsoft’s request, Company will defend, hold harmless, and indemnify Microsoft and Microsoft’s directors, officers, employees, agents, subsidiaries, affiliates and each of their successors from and against all third-party claims, actions, demands, proceedings, damages, costs and liabilities of any kind (collectively, Claims) to the extent that the Claims arise out of or relate to any Application, Company’s use of the Tag Scanning SDK or Tag Resolution Service, Company’s violation of laws or applicable regulations (e.g., violation of consumer protection, product packaging, or other laws), Company’s breach of Company’s warranties or obligations under this Agreement, Company’s violation of privacy laws, regulations, or privacy requirements under this Agreement, or other Claims that may arise out of an Application (e.g., product liability Claims). Company will be solely responsible for defending any claim using mutually-agreed counsel, subject to Microsoft’s right to participate with counsel it selects, and Company will not publicize any claim or agree to any settlement that imposes any obligation or liability on Microsoft (or Microsoft’s directors, officers, affiliates, and agents) without Microsoft’s prior written consent, which consent is given in Microsoft’s sole discretion.

15. LIMITATIONS OF LIABILITY

Company and its employees, agents, and affiliates collectively can recover from Microsoft and its affiliates only direct damages up to the greater of (a) $5.00 US, or (b) an amount equal to the fees Company has paid to Microsoft for the Tag Scanning SDK or Tag Resolution Service for the month preceding Company’s claim against Microsoft. Company and its employees, agents, and affiliates cannot recover any other damages, including consequential, lost profits, special, indirect, incidental or punitive damages.


The limitations and exclusions apply to any claims made by Company against Microsoft and its affiliates that are related to this Agreement, including but not limited to claims regarding:


  • the Tag Scanning SDK;
  • loss of data;
  • Applications created by or for Company, and by other third parties;
  • content (including code) on third party Internet sites, third party programs or third party conduct;
  • viruses or other disabling features that affect Company’s access to or use of the Tag Scanning SDK or Tag Resolution Service;
  • incompatibility between the Tag Scanning SDK and other services, software and hardware;
  • delays or failures Company may have in initiating, conducting or completing any transmissions or transactions in connection with the Tag Scanning SDK or Tag Resolution Service in an accurate or timely manner; and
  • breach of contract, breach of warranty, guarantee or condition, strict liability, negligence or other tort.

The limitations and exclusions also apply if this remedy does not fully compensate Company for any losses or fails of its essential purpose or if Microsoft knew or should have known about the possibility of the damages. Some or all of these limitations or exclusions may not apply to Company if Company’s state, province, or country does not allow the exclusion or limitation of incidental, consequential, or other damages.

16. TERM AND TERMINATION; MODIFICATION OF AGREEMENT

16.1. The term of this Agreement is from the date that Company accepts this Agreement until it is terminated, as described below.


16.2. Company may terminate this Agreement by ceasing to use the Tag Scanning SDK or Tag Resolution Service or by providing notice to Microsoft of termination. If Company is dissatisfied with the Tag Scanning SDK or the Tag Resolution Service, Company’s sole and exclusive remedy is to cease use of the Tag Scanning SDK and the Tag Resolution Service.


16.3. Microsoft may modify this Agreement in its discretion and will provide notice to Company by e-mail, posting of changes of the web site, or other commercially reasonable means. Microsoft will use commercially reasonable efforts to provide Company with at least one hundred twenty (120) days notice prior to any changes in the Agreement that would materially affect Company’s use of the Tag Scanning SDK or the Tag Resolution Service under this Agreement.


16.4. In addition to Microsoft’s rights in Sections 8 and 16.3, Microsoft may terminate this Agreement, Company’s use of a Tag, Trial SDK Key, a Commercial SDK Key, the Tag Resolution Service, Tag Scanning SDK or any part of the Microsoft Tag service, or Company’s rights to distribute an Application for any reason upon one hundred eighty (180) days’ notice to Company.


16.5. Microsoft may terminate this Agreement, and may cancel or suspend Company’s right to distribute an Application or use the Tag Scanning SDK, Tag Resolution Service and Microsoft Marks if Company breaches any term of this Agreement or any other agreements relating to the Microsoft Tag service or technologies, and Company does not cure such breach within thirty (30) days’ notice, if such breach is capable of cure. Upon such cancellation or suspension, Company’s rights to distribute Applications or use the Trial SDK Key, Commercial SDK Key, the Microsoft Marks, Tag Scanning SDK or Tag Resolution Service terminate immediately. Microsoft may immediately, without advance notice, terminate Company’s ability to use a Trial SDK Key, the Microsoft Marks, a Commercial SDK Key, the Tag Scanning SDK or the Tag Resolution Service, without any obligation to continue making the Tag Scanning SDK available, for reason of (a) law or regulation; (b) an event of force majeure; (c) actual or threatened court action; or (d) either party brings suit against each other under or relating to this Agreement. Termination of the Tag Scanning SDK pursuant to this Section 16.5 is not a violation of Microsoft’s notice obligations in Section 8 and is in addition to any other rights Microsoft has in this Agreement and under law.


16.6 In any event of any termination, cancellation or suspension, Company must immediately cease distributing any portions of the Tag Scanning SDK code from the Applications and promptly remove all Applications containing Tag Scanning SDK code from any distribution channels or Application Marketplaces. Microsoft will not be liable to Company for damages resulting from terminating this Agreement, Company’s use of the Tag Scanning SDK or Tag Resolution Service, or distribution of Applications according to its terms. All terms of this Agreement that, by their nature, are intended to survive termination will survive (including without limitation those sections entitled “WARRANTIES” and “LIMITATIONS OF LIABILITY”).

17. APPLICABLE LAW AND PLACE FOR RESOLVING DISPUTES

Washington State law governs the interpretation of this Agreement and applies to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of Company’s principal place of business in the United States, or, if Company is outside the United States, the laws of the country to which Microsoft directs Company’s service. The parties irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA, for all disputes arising out of or relating to this Agreement.

18. NOTICES

18.1. Microsoft may provide any notices under this Agreement to the e-mail address associated with Company’s Windows Live ID account. This Agreement is in electronic form. Microsoft has the right to send Company certain additional information electronically. There may be other information regarding the Tag Scanning SDK or Tag Resolution Service that the law requires Microsoft to send Company. Microsoft may send Company this information in electronic form. Company has the right to withdraw this consent, but if Company does, Microsoft will cancel Company’s use of the Tag Scanning SDK or Tag Resolution Service.


18.2. Notices provided to Company via email will be deemed given and received on the transmission date of the email.


18.3. Notices to Microsoft must be sent in writing to Microsoft Corporation, Mail Slot: Microsoft Tag, One Microsoft Way, Redmond, WA 98052, with another copy to Microsoft Law and Corporate Affairs, Attention: LCA for Microsoft Tag, One Microsoft Way, Redmond, WA 98052. Microsoft does not accept email notices. Notices regarding claims of copyright infringement should be sent pursuant to Section 18.4 below.


18.4. Notices and Procedure for Making Claims of Copyright Infringement. Under Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to service provider's designated agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement at http://www.microsoft.com/info/cpyrtInfrg.htm.

19. INTERPRETING THE AGREEMENT

All parts of this Agreement apply to the maximum extent permitted by law. If any term of this Agreement is unenforceable, the remainder will be fully enforced to effect the parties' intent. This Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed to favor either party. The section titles in the Agreement do not limit the other terms of this Agreement. This Agreement supersedes any verbal or written statements regarding Company’s use of the Tag Scanning SDK or Tag Resolution Service.

20. ASSIGNMENT

Microsoft may assign this Agreement, in whole or in part, at any time with or without notice to Company. Company may not assign this Agreement, or any part of it, to any other person without Microsoft’s prior written consent, which will not be unreasonably withheld. Any attempt by Company to do so is void. Company may not transfer to anyone else, either temporarily or permanently, any rights to use the Tag Scanning SDK or Tag Resolution Service.

21. THIRD PARTY BENEFICIARIES

This Agreement is solely for Company’s and Microsoft’s benefit. This Agreement is not for the benefit of any other person, except for permitted successors and assigns under this Agreement. Notwithstanding the foregoing, Company agrees that Microsoft Corporation and its affiliates are intended third party beneficiaries of the provisions of this Agreement, and that Microsoft or any of its affiliates is entitled in its own right to require the due performance or enforcement of those certain provisions.

22. CLAIMS MUST BE FILED WITHIN ONE YEAR

Any claim related to this Agreement or the Tag Scanning SDK or Tag Resolution Service may not be brought unless brought within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to Company, Company’s successors and permitted assigns and Company’s affiliates. It also applies to Microsoft and Microsoft’s successors and assigns.

23. EXPORT

The Tag Scanning SDK and Tag Resolution Service are subject to United States export laws and regulations. Company must comply with all domestic and international export laws and regulations that apply to the Tag Scanning SDK. These laws include restrictions on destinations, end-users, and end use. Additional information is provided at http://www.microsoft.com/exporting.