Team Foundation Service Agreement

Updated March 4, 2013

This Team Foundation Service Agreement is between the party accepting this agreement and Microsoft Corporation (“Microsoft”) and consists of the below terms and conditions, the Privacy Statement and the terms listed on the Portal. It is applicable to all users of the Services and is effective upon your initial sign-up for the Service or upon your continued usage of the Service if you previously accepted different terms. Key terms are defined in Section 9. You may also need to use other Microsoft web sites and online services to access and use the Services (for example, your Microsoft Account), and if so, the terms of use associated with those web sites or online services apply to your use of them.

1. Use of Services.

   1. Right to use. We grant you the right to access and use the Services and to install and use Software made available through the service, as further described in this agreement. We reserve all other rights.

   2. Manner of use. You may use the Product only in accordance with this agreement. You may not reverse engineer, decompile, disassemble or work around technical limitations in the Product, except where applicable law permits it despite this limitation. You may not disable, tamper with or otherwise attempt to circumvent any mechanism that limits your use of the Product. You may not rent, lease, lend, resell, transfer, or sublicense any Product to or for third parties.

   3. Customer Data. You are solely responsible for the content of your Customer Data. You must have sufficient rights to use and distribute Customer Data (including Customer Data sourced from third parties) necessary for us to provide you the Services without violating the rights of any third party, or otherwise obligating Microsoft to you or to any third party. Microsoft does not and will not accept any obligations set forth in any separate license or other agreement that may apply to Customer Data or your use of the Products.

   4. Non-Microsoft Products.

      1. We may make Non-Microsoft Products available to you through the Portal or other means. The use of a Non-Microsoft Product will be governed by separate terms between you and the third party providing that Non-Microsoft Product. Microsoft, however, assumes no responsibility or liability whatsoever for the Non-Microsoft Product.

      2. You are solely responsible for any Non-Microsoft Product that you install or use with the Services. We are not a party to and are not bound by any terms governing your use of Non-Microsoft Product.

      3. If you install or use any Non-Microsoft Product with the Services, then you, not Microsoft, direct and control the installation and use of it in the Services through your actions (for example, through your use of application programming interfaces and other technical means that are part of the Services). We will not run or make any copies of such Non-Microsoft Product outside of our relationship with you.

      4. If you install or use any Non-Microsoft Product with the Services, you may not do so in any way that would subject our intellectual property or technology to obligations beyond those included in this agreement.

   5. Responsibility for your accounts. You are also responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials, or any security incident related to the Services.

   6. Updates. We may make changes to the Services from time to time, including: the availability of features; how long, how much or how often any given feature may be used; and feature dependencies upon other services or software. We will provide you with prior notice before removing any material feature or functionality (excluding Previews), unless security, legal or system performance considerations require an expedited removal.

   7. Preview features. We may make features available on a Preview basis. Previews may be subject to reduced or different security and support commitments, as further explained in any additional notices provided with the Preview. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into “General Availability”, and if we do make Previews “Generally Available” we may charge for any such features.

2. Security, privacy, and data protection.

   1. Security. We maintain technical and organizational measures intended to protect Customer Data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction.

   2. Privacy and data location. We treat Customer Data in accordance with our Privacy Statement. Subject to any restrictions set forth in the Privacy Statement, we may transfer to, store, and process Customer Data in any country where we or our Affiliates or subcontractors have facilities used for Services. We are a data processor (or sub-processor) acting on your behalf, and you appoint us to do these things with Customer Data in order to provide the Services to you. You will obtain any necessary consent from others whose personal information or other data you will be hosting in the Service.

   3. Ownership of Customer Data. Except for Software we license to you, as between the parties, you retain all right, title and interest in and to Customer Data. We acquire no rights in Customer Data, other than the right to host Customer Data on Microsoft systems, including the right to use and reproduce Customer Data within Microsoft systems solely for such hosting purposes.

   4. Use of Customer Data. We will use Customer Data only to provide you the Services. This use may include troubleshooting to prevent, find and fix problems with the operation of the Services and ensuring compliance with this agreement. It may also include improving features for finding and protecting against threats to users. We may use usage patterns, trends, and other statistical data derived from Customer Data to provide, operate, maintain, and improve the Services and Software and any Microsoft products and services used to deliver the Services.

   5. Third party requests. We will not disclose Customer Data to a third party (including law enforcement, other government entity, or civil litigant; excluding our subcontractors) except as you direct or unless required by law. Should a third party contact us with a demand for Customer Data, we will ask the third party to contact you directly and may provide your basic contact information to the third party. If compelled to disclose Customer Data to a third party, we will use commercially reasonable efforts to notify you in advance of a disclosure unless legally prohibited. You are responsible for responding to requests by a third party regarding your use of Services, such as a request to take down content under the Digital Millennium Copyright Act.

   6. Subcontractors. We may hire other companies to provide limited services on our behalf, such as customer support. Any such subcontractors will be permitted to obtain Customer Data only to deliver the services we have retained them to provide, and they are prohibited from using Customer Data for any other purpose. We remain responsible for our subcontractors’ compliance with the obligations set forth in this agreement.

   7. Compliance with law. We will comply with all laws applicable to our provision of the Services, including applicable security breach notification laws, but not including any laws applicable to you or your industry that are not generally applicable to information technology services providers. You will comply with all laws applicable to your Customer Data, and use of the Services, including any laws applicable to you or your industry.

3. Term, termination, and suspension.

   1. Agreement Term and termination. This agreement will remain in effect unless terminated by either party.

   2. Customer Data return and deletion. You may access your Customer Data made available through the Service at any time. You may delete your Customer Data at any time . If you terminate your account we may delete Customer Data immediately without any retention period. You agree that we have no additional obligation to continue to hold, export or return Customer Data and that we have no liability whatsoever for deletion of Customer Data pursuant to these terms.

   3. Regulatory. In any country where any current or future government regulation or requirement applies to us, but not generally to businesses operating there, presents a hardship to us operating the Services without change, and/or causes us to believe this agreement or the Services may be in conflict with any such regulation or requirement, we may change the Services or terminate the agreement. If we use this subsection 3(c) of the agreement to change the Services, then you may terminate this agreement.

   4. Suspension. We may suspend your use of the Services if: (1) reasonably needed to prevent unauthorized access to Customer Data; (2) you fail to respond to a claim of alleged infringement under Section 3 within a reasonable time; or (3) you violate other terms of this agreement. A suspension will apply to the minimum necessary part of the Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate this agreement and delete your Customer Data without any retention period.

   5. Termination for nonusage. We may terminate this agreement and/or delete any Customer Data automatically generated during the sign up process if you fail to upload or create any Customer Data within 90 days of your initial provisioning of the service. We will provide you with notice prior to any such termination or deletion.

4. Warranties.

   WE PROVIDE THE SERVICES “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” WE PROVIDE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

5. Defense of claims.

   1. Defense. We will defend you against any claims made by an unaffiliated third party that the Product infringes its patent, copyright or trademark or makes unlawful use of its trade secret. You will defend us against any claims made by an unaffiliated third party that any Non-Microsoft Product that is not made available through the Product or Customer Data you provide directly or indirectly in using the Product infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret.

   2. Limitations. Our obligations in subsection 5(a) will not apply to a claim or award based on: (1) Customer Data, Non-Microsoft Product, modifications you make to the Product, or materials you provide or make available as part of using the Product; (2) your combination of the Product with, or damages based upon the value of, a Non-Microsoft Product, data or business process; (3) your use of a Microsoft trademark without our express written consent, or your use of the Product after we notify you to stop due to a third-party claim; or (4) your redistribution of the Product to, or use for the benefit of, any unaffiliated third party.

   3. Remedies. If we reasonably believe that a claim under subsection 5(a) may bar your use of the Product, we will seek to: (1) obtain the right for you to keep using it; or (2) modify or replace it with a functional equivalent. If these options are not commercially reasonable, we may terminate your rights to use the Product.

   4. Obligations. Each party must notify the other promptly of a claim under this Section 5. The party seeking protection must (1) give the other sole control over the defense and settlement of the claim; and (2) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment (or settlement that the other consents to). The parties’ respective rights to defense and payment of judgments or settlements under this Section are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law rights.

6. Limitation of liability.

   1. EXCLUSION. NEITHER PARTY WILL BE LIABLE FOR LOSS OF REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, EVEN IF THE PARTY KNEW THEY WERE POSSIBLE.

   2. Exceptions to Limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under Section 5 or subsection 8(l); or (2) violation of the other's intellectual property rights.

7. Software.

   1. Software provided for use on devices. If the Software is provided to you with its own proprietary license terms, those terms control. If the Software does not have its own license terms, then you may install and use any number of copies of Software on your devices for use with Services. This Section does not apply to Software addressed in subsection 7(b).

   2. Software provided for use within Services. We may provide you with the option of running Software within the Services (for example, in a build). Your use of the Software is subject to Microsoft’s proprietary license terms contained in the Software, as modified below:

      1. You may use such Software only within the Services and only in conjunction with your permitted use of any applicable Services role. To the extent of any conflict between this paragraph and the proprietary license terms contained in the Software, this paragraph controls.

      2. You have no other rights under the Software’s license terms or under this agreement to run the software (for example, you may not run copies on your on-premise servers or other devices unless you separately obtain the license to do so).

   3. Effect of termination or expiration on Software. If this agreement is terminated then you must delete all copies of Software licensed under this agreement and destroy any associated media.

   4. Other rights. Rights to access Software on any device do not give you any right to implement Microsoft patents or other Microsoft intellectual property in software or devices that access that device.

   5. Third party software. Software may contain third party proprietary programs that are licensed under separate terms that are presented to you. Software may also contain third party open source programs that Microsoft, not the third party, licenses to you under Microsoft’s license terms. Notices, if any, for the third party open source programs are included for your information only.

   6. Third party licensed content. Third party scripts and code linked to or referenced from the Services are licensed to you by the third parties that own such code, and are not licensed by us other than for the purpose of viewing and interacting with the Services.

8. Miscellaneous.

   1. Notices. You agree to receive electronic notices from us which will be sent by email. Notices are effective on the date on the return receipt or, for email, when sent.

   2. Assignment. You may not assign this agreement either in whole or in part.

   3. Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.

   4. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.

   5. No agency. We are independent contractors. This agreement does not create an agency, partnership or joint venture.

   6. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.

   7. Applicable law and venue. This agreement is governed by State of Washington law, without regard to its conflict of laws principles except that (1) if you are a U.S. Government entity, this agreement is governed by the laws of the United States, and (2) if you are a state or local government entity in the United States, this agreement is governed by the laws of that state. Any action to enforce this agreement must be brought in the State of Washington. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of intellectual property rights.

   8. Entire agreement. This agreement (which includes the Privacy Statement, and the terms listed on the Portal) is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.

   9. Survival. The following provisions will survive this agreement’s termination: 1a–e, 2b–g, 3a–b, 4–6, 7c, and 8–9.

   10. U.S. export jurisdiction. The Product is subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.

   11. Force majeure. Neither party will be liable for any failure in performance due to causes beyond its reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services).

   12. Modifications. We may modify this agreement at any time by posting a revised version on the legal information section of the Portal (or an alternate site we identify) or by notifying you in accordance with subsection 8(a).

9. Definitions.

   Any reference in this agreement to “day” will be a calendar day.

   “Affiliate” means any legal entity that a party owns or that owns a party, with a 50% or greater interest.

   “Customer Data” means all data, including all text, sound, software, or image files that are provided to us by, or on behalf of, you through your use of the Services.

   “Non-Microsoft Product” is any software, data, service, website or other product licensed, sold or otherwise provided to you by an entity other than us, whether you obtained it via our Product or elsewhere.

   “Portal” means the online portal from which you activate an account at http://tfs.visualstudio.com or at an alternate site we identify.

   “Previews” means preview, beta, or other pre-release versions of the Services or Software offered by Microsoft to obtain customer feedback.

   “Privacy Statement” means the Team Foundation Service Privacy Statement, published at http://tfs.visualstudio.com/en-us/support/legal/privacy-policy/ or at an alternate site that we identify.

   “Product” means any Services and Software.

   “Services” means the Team Foundation Service or features made available to you under this agreement by Microsoft.

   “Software” means Microsoft software we provide to you as part of the Services for use with the Services.

   “we” and “us” means Microsoft Corporation and its affiliates, as appropriate.

   “you” and “your” means the entity accepting this agreement to use the Product.