MICROSOFT TAG API BETA TERMS OF USE Last Updated: July 2009 What this Contract Covers. This is a contract between you and Microsoft Corporation ("Microsoft"). Sometimes Microsoft is referred to as "we," "us" or "our". This contract applies to the pre-release or "beta" version of the Microsoft Tag application programming interface (the "API"). “Tags” are high-capacity color barcodes that can be printed, stuck or displayed on various materials. Once a Tag is scanned with a mobile device, the device takes an action associated with the Tags. The Microsoft systems that create and provide a Tag creator’s information for the Tags are referred to as the “Service”. The API is a service provided by Microsoft that enables you to 1) use the APIs to create Tags for your own use or 2) to develop and operate services that create Tags for the use of third party end users for whom you are acting as an agent. For the purposes of clarification, this agreement does not permit you to make the API available directly to third parties. Please note that we do not provide warranties for the API or Service. The contract also limits our liability. We ask you to read it carefully. This API and the Service is a beta release product. We provide the API and the Service solely on an "as is" and "as available" basis. What Rights You Have. Solely to the extent that you are in compliance with all terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicenseable license to access and use the API for the purposes set forth in this Agreement. You are responsible for any acts or omissions of your end users in using the Tags or the Service, including any acts or omissions that would otherwise be a breach of this Agreement. How You May Use the API. In using the API and permitting your end users to create Tags, you will comply with any codes of conduct, design guidelines or other notices of rules for the service that we provide, including, without limitation those set forth in the Microsoft Tag Beta Agreement, available at http://www.microsoft.com/tag/Terms/creator/, and the Microsoft Anti-spam Policy, available at http://go.microsoft.com/fwlink/?LinkId=117951. How You May Not Use the API. In connection with the API, you may not and you must prevent your users from: • using the API, Service or any Tags in a way that harms Microsoft or our affiliates or suppliers (collectively, the “Microsoft parties”); • using any portion of the API, Service or an Tags, or any web site that displays or performs content from the Service, as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”); • violating any applicable privacy or data protection law or regulation or violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights); • violating any applicable U.S. Export Administration Regulations or end-user, end-use and destination restrictions issued by U.S. and other governments. The APIs and Service are subject to U.S. export jurisdiction; • damaging, disabling, overburdening, or impairing the APIs or Service (or the network(s) connected thereto), or interfering with anyone’s use and enjoyment of the Service; and • selling, leasing or sublicensing access to the APIs or Service. Microsoft reserves the right, in its sole discretion, to determine whether your use of the API and Service and/or your end users’ use of the API and Service are in accordance with the terms of this agreement. Limitations and Conditions of the Service. We may use technology or other means to protect the API, Service, protect our customers, or stop you from breaching this contract. These means may include, for example, filtering to stop spam or increase security. These means may hinder or break your use of the Service, and you may not work around or attempt to thwart or disable any of these technical or other means. We also may, in our sole discretion, limit the rate at which the Service, or any subset of it, may be called and/or the number of Tags that can be created ("Throttling"). We may perform this Throttling globally across the Service, per end user, or on any other basis. You will not take steps to circumvent any technical measures we may put in place to enforce Throttling. Privacy. All access to and use of the API, the Service, and Tags is subject to the data practices set forth in the Microsoft Tag Privacy Statement. In particular, we may access or disclose information about you or your end users, including the content of your or your end users’ communications, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Microsoft or our customers, including the enforcement of our agreements or policies governing your use of the API and the Service; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Microsoft employees, customers or the public. Information that is collected by or sent to Microsoft in connection with this Agreement, the use of the API, the Service, or Tags 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. You are responsible for providing end users with notice of Microsoft’s privacy practices applicable to the API and adequate notice of your own privacy practices in compliance with law. How We May Change the Contract. If we change this contract, then we will provide notice to you by e-mail. If you do not agree to the changes, then you must stop using and/or hosting the API. If you do not stop using and/or hosting the API, then your use of the API will continue under the changed contract. We may choose in the future to charge for all use of the API or the Service, or change the requirements for use that is free of charge. If we choose to change the fee requirements for the API or the Service, Microsoft will provide notice of such terms by e-mail, and you may elect to stop using the API rather than incurring fees. Your Responsibility. You will indemnify and hold Microsoft (and its directors, officers, affiliates, and agents) parties harmless from and against any and all loss, liability, and expense (including reasonable attorneys' fees and costs) suffered or incurred by reason of any claims, proceedings, or suits based on or arising out of any breach (or alleged breach) by you or your end users of this contract, or any part of it, or that otherwise relates to your use or your end users use of the API or the Service. You will be solely responsible for defending any claim using mutually-agreed counsel, subject to Microsoft's right to participate with counsel it selects, and you will not publicize any claim or agree to any settlement that imposes any obligation or liability on Microsoft (or its directors, officers, affiliates, and agents) without Microsoft's prior written consent, which consent is given in Microsoft's sole discretion. Reservation of Rights. Microsoft and its suppliers retain all right, title, and interest in and to the API, the Service, and the Tag technology and all intellectual property rights in any of these. This agreement does not grant you any rights in any Microsoft logo, trademark or service mark, and you will not use any logo, trademark or service mark of Microsoft for any purpose without the prior written approval of Microsoft. You will not claim or imply any sponsorship or endorsement of your products or services by Microsoft. Term. This contract will become effective on your first use of the API. This contract may be terminated immediately for any reason or no reason and without notice by Microsoft. If this contract terminates, all rights granted to you by this contract will automatically terminate and you will cease to have any rights to use the API. We will not be liable to you for damages resulting solely from terminating this contract according to its terms. All terms of this contract that, by their nature, are intended to survive termination will survive (including those sections entitled ”WE MAKE NO WARRANTY” and ”LIABILITY LIMITATION”). Pre-Release. The API, the Tags and the Service are pre-release versions. They may not work the way a final version of the API, the Tags and/or the Service would. We may change the API, the Tags and/or the Service for a final, commercial version. We also may not release a commercial version, in our sole discretion. WE MAKE NO WARRANTY. Microsoft makes no warranties (express, implied, or otherwise), including implied warranties of merchantability, non-infringement, fitness for a particular purpose, or title, related to the API, the Service, the Tags, their performance, or anything provided in relation to this contract. Without limiting the foregoing, Microsoft makes no guarantees with respect to the availability of the API, the Tags, the Service or any other technologies. You will not make any warranties about the API, Service, or Tags to end users or any other third parties. LIABILITY LIMITATION. You and your end users can recover from the Microsoft parties only direct damages up to the greater of (i) the fees you have paid to us for the Service for one month or (ii) $5 USD. You cannot recover any other damages, including consequential, lost profits, special, indirect, incidental or punitive damages. This limitation applies to anything related to: • the API; • the Service; • Tags you create or your end users or other third parties create; • content (including code) on third party Internet sites, third party programs or third party conduct; • viruses or other disabling features that affect your access to or use of the API or the Service; • incompatibility between the API, the Service and other services, software and hardware; • delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner; and • claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence or other tort. It also applies even if: • this remedy does not fully compensate you for any losses or fails of its essential purpose; or • Microsoft knew or should have known about the possibility of the damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. They also may not apply to you because your province or country may not allow the exclusion or limitation of incidental, consequential or other damages. Changes to the Service; Cancellation of the Service. We may change the API or Service at any time and for any reason, with or without notice. Such changes may include removal of features, or the requirement of fees for previously free features. Some changes to the API or Service may cause existing applications to stop working. We may cancel or suspend your use of the API or Service at any time. Our cancellation or suspension may be without cause and/or without notice. Upon cancellation or suspension, your right to use the API and host your application(s) stops right away. Once the API or Service is cancelled or suspended, any data you have stored on the Service may not be retrieved later. Interpreting the Contract. All parts of this contract apply to the maximum extent permitted by law. If any term of this contract is unenforceable, the remainder will be fully enforced to effect the parties' intent. This contract 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 contract do not limit the other terms of this contract. Assignment. We may assign this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, or any part of it, to any other person without our prior written consent, which will not be unreasonably withheld. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the API or any part of the API. No Third Party Beneficiaries. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this contract. Claims Must Be Filed Within One Year. Any claim related to this contract, the API or the 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 you, your successors and your end users. It also applies to us and our successors and assigns. Export. The API 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 API. These laws include restrictions on destinations, end users, and end use. Additional information is provided at http://www.microsoft.com/exporting. Notices; Consent Regarding Electronic Information. This contract is in electronic form. We have the right to send you certain additional information. There may be other information regarding the API or Service that the law requires us to send you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel your use of the API or the Service. We may provide required information to you: • by e-mail at the e-mail address you specified when you signed up for the API; • by posting to a Microsoft web site that will be designated in an e-mail notice sent to you at the time the information is available; or • by posting to a Microsoft web site that will be generally designated in advance for this purpose. Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you use and/or host the API, you will ensure that you have the necessary software and hardware to receive these notices. If you do not consent to receive any notices electronically, you must stop using and/or hosting the API. Any notice from you will be sent electronically to: tagapi@microsoft.com. Miscellaneous. The parties are independent contractors under this contract and do not intend to form any other relationship. Only written waivers will be effective. Each party will pay its own costs to perform (except where expressly stated otherwise). You will maintain commercially reasonable levels of insurance with commercially reasonable insurers to enable you to comply with your obligations under this contract. In relation to this contract, you will comply with all applicable laws and other requirements of governments having jurisdiction. All rights and remedies under this contract are cumulative. Except as otherwise expressly stated in this contract, this contract is the parties' entire agreement on this subject and merges and supersedes all related prior and contemporaneous communications and agreements. Choice of Law and Location for Resolving Disputes. Washington State law governs the interpretation of this contract 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 your state of residence in the United States, or if you live outside the United States, the laws of the country to which we direct your service. You and we 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 contract.