Service Subscription Agreement
Last Updated: December 2003
1. THIS IS AN AGREEMENT BETWEEN YOU AND MICROSOFT
This is an agreement between you and Microsoft Corporation (“Microsoft”) (located at One Microsoft Way, Redmond, WA 98052-6399 (“Agreement”). This Agreement governs your use of this service, and includes any associated services, software, equipment, support, Content and other media, documentation, updates or upgrades (the “Service”). You represent that you are at least 18 years old, and all information that you submit is correct.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY (See Sections 11, 12, and 13); AND AN EXCLUSIVE REMEDY (See Section 12). THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN.
2. HOW MICROSOFT MAY MODIFY THIS AGREEMENT
If Microsoft changes this Agreement, then it will notify you at least 30 days before such changes become effective. Microsoft may notify you via e-mail, online posting or other means. If you do not agree to such changes, then you must cancel your subscription and stop using the Service before such changes become effective. Your continued use of the Service after the effective date of such changes constitutes your acceptance of and agreement to such changes.
3. NO COMMERCIAL, UNLAWFUL OR HARMFUL USE OF THE SERVICE
The Service is only for your personal use. You will not use the Service for commercial purposes. You will not use the Service in any way that is unlawful, or harms any of the Microsoft Parties as defined below or any customer of a Microsoft Party, as determined in Microsoft’s sole discretion. Microsoft may tell you about certain specific harmful uses in a code of conduct or other notices available through the Service, but has no obligation to do so. You may not use the Service in any way that breaches any code of conduct or other notice applicable to the Service.
4. SPAM IS PROHIBITED AND CAUSES DAMAGE
Without limiting the generality of Section 3, you will not use the Service to transmit, either directly or indirectly, any bulk e-mail or unsolicited commercial e-mail. You will not use the Service in any way that violates the Microsoft Anti-Spam Policy. You may view the Anti-Spam Policy at http://privacy.msn.com/anti-spam. A breach of any part of the Anti-Spam Policy is a breach of this Agreement.
5. YOU ARE RESPONSIBLE FOR THE SERVICE ACCOUNT
You are responsible for all activity under your Service account. You are responsible for maintaining the confidentiality of any password connected with your Service account. Microsoft may allow you to have additional persons use your Service account and/or have additional member accounts associate to your Service account (“Associated Accounts”). You will allow only adult household relatives and children for whom you are the legal guardian to use your Service account or any Associated Accounts.
6. ASSOCIATED ACCOUNT USERS
If you are the user of an Associated Account, you hereby agree that the holder of the Service account has full control over your Associated Account. This control includes without limitation the right to terminate the Service, terminate or alter your Associated Account at any time, and to request and receive usage information related to your Associated Account. You hereby consent to the collection of any data related to your Associated Account and the delivery of this data to the holder of the Service account and Microsoft. As an Associated Account user, by accepting this agreement you are bound by this Agreement except that the following sections do not apply to you: Section 5, (You Are Responsible For The Service Account), Section 7 (Charges and Billing); Section 15 (Your Termination of Service), Section 20 (Microsoft’s Notices To You; Consent Regarding Electronic Information), and Section 21 (Hardware and Software Requirements).
7. CHARGES AND BILLING
7.1 Not Applicable to Some Situations. If the Service is available without a fee, then this Section 7 will not apply. If the Service is provided for a fee paid to Microsoft (either currently, or in the future), then terms of this Section 7 apply to you. If the Service is provided for a fee paid to a company other than Microsoft, the terms applicable to charges and billing are as set forth by the other company.
7.2 Payment Method. Microsoft bills you through an online account (your “Billing Account”) for the Service. You will pay Microsoft all charges at the prices then in effect for the Service ordered using your Billing Account, and you authorize Microsoft to charge, and you agree to pay using, your designated payment method (your “Payment Method”) for the Service. Microsoft reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment. If you have subscribed for the Service on the 29th, 30th or 31st day of a month, then the anniversary date of your subscription period will be deemed to be the 1st day of the month. You represent that you are authorized to use the Payment Method. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT IN ORDER TO RECEIVE THE SERVICES ORDERED. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY MICROSOFT IF YOUR PAYMENT METHOD IS CANCELED (FOR EXAMPLE, FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH ASTHE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT https://billing.microsoft.com.
7.3 Trial Period Offers. If you are participating in any trial period offer, you must terminate the Service by the end of the applicable trial period to avoid incurring applicable charges. If you do not terminate your trial subscription by the end of the trial period, then you hereby authorize Microsoft to charge your Payment Method for the Service.
7.4 Prices and Price Increases. Prices for the Service exclude all applicable taxes and telecommunication charges, unless expressly stated otherwise, and such taxes and charges are your responsibility. Currency exchange settlements will be based on agreements between you and the provider of your Payment Method (your “Payment Method Provider”). Microsoft may, with reasonable notice, change the pricing of the Service, from time to time. If there is a specific duration and price for your Service subscription, then that price will remain in effect for such duration, but continued use of the Service thereafter will be at the new price. If your Service subscription is on a period basis (for example, monthly), with no specified duration, then any change in pricing will be effective on the date indicated by Microsoft. If you do not agree to such change, then you must cancel your Service subscription and stop using the Service prior to the effective date of such change. Your continued use of the Service after the effective date of such change constitutes your acceptance of and agreement to such change. If you terminate your Service subscription, then such termination will be effective at the end of your current Service subscription term or, if your account is billed on a period basis, at the end of the period in which you provide such notice. The charges for the Service are payable in advance, unless stated otherwise. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO https://billing.microsoft.com.
If the amount to be charged to your Billing Account varies from the amount you have preauthorized, you have the right to receive, and Microsoft will so provide, notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. Your agreement with your Payment Method Provider will govern your use of that Payment Method. You agree that Microsoft may accumulate charges incurred during one or more of your monthly billing cycles and submit them as one or more aggregate charges at any time. MICROSOFT MAY CONTINUE TO SUBMIT ALL RECURRING OR PERIODIC CHARGES FOR THE SERVICE WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (CONFIRMED IN WRITING UPON REQUEST) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE MICROSOFT REASONABLY COULD ACT. TO TERMINATE OUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO https://billing.microsoft.com.
7.5 Refund Policies. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by applicable law. The costs of any returns if permitted will be at your expense, unless otherwise provided by applicable law.
7.6 Dial-up Access Phone Numbers; Hours. If your Service is for the acquisition of Internet access, it is possible the access number for your dial-up modem may be a telephone number that results in additional or long distance charges being billed to you by a third party, even if such number was presented by the Service as an appropriate access number for your area. You are solely responsible for determining whether the access number you use is subject to any additional charges and, if so, paying those charges. Microsoft will not reimburse you for any such charges. You also will pay any additional charges you incur if you connect to the Service through a Service telephone number while you are in a country that is not the country associated with your Service account (“Roaming Charges”). Roaming Charges are in addition to any long distance telephone charges you may incur when connecting to the Service from another country. Please check the Service information area to view the current rates for Roaming Charges. You may also incur additional charges if your usage of the Service exceeds the number of hours covered by your applicable subscription plan.
7.7 Online Statement. You can sign into https://billing.microsoft.com to view your online billing statement (“Online Statement”). Your Online Statement will be updated monthly. Except as otherwise required by applicable law, the Online Statement is the only such billing statement that Microsoft will provide to you. IT IS YOUR RESPONSIBILITY TO PRINT OR SAVE A COPY OF YOUR ONLINE STATEMENT AND TO RETAIN THIS COPY FOR YOUR RECORDS. You may request a paper copy of your Online Statement, but you will be charged a retrieval fee. To request a paper copy of your Online Statement, go to https://billing.microsoft.com. Paper copies of your Online Statement will only be provided for a period of 120 days from the date of the Online Statement. Your inability to view an Online Statement does not extend, or relieve you of, your obligation to pay any amounts owing to Microsoft. Unless you notify Microsoft of any error within 120 days after it first appears in any Online Statement, such statement will be deemed accepted by you for all purposes, including, without limitation, resolution of inquiries made by your Payment Method Provider. YOU RELEASE MICROSOFT FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT IS NOT REPORTED TO MICROSOFT WITHIN 120 DAYS AFTER THE ERROR FIRST APPEARS ON YOUR ONLINE STATEMENT.
7.8 Due Date; Late Charge. All amounts you owe Microsoft must be paid in full on the date such payment is deemed due by Microsoft. You shall pay any late charges that Microsoft assesses on amounts due but not timely paid. The late charge will be the lesser of 1% per month (or 12% per annum) on the total amount due but not paid or the maximum rate that is permitted by law. Microsoft reserves the right to refer your Billing Account to a third party for collection in the event of default. You agree to pay all costs incurred in the enforcement of this Agreement and in collection of any delinquent amounts due, including reasonable attorneys’ fees and other legal fees and costs.
7.9 Default. If Microsoft does not receive payment for any charge to your Billing Account, you will be in default and Microsoft may suspend or cancel the Service and your access to the Service. If your Payment Method Provider seeks return of payments previously made to Microsoft, but Microsoft in good faith believes that you are liable for the charges, then, subject to applicable law, Microsoft may seek payment from you and you will also be in default.
8. MATERIALS YOU POST OR PROVIDE; COMMUNICATIONS MONITORING
For materials you post or otherwise provide to Microsoft related to the Service (a “Submission”), you grant Microsoft permission to (1) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate and reformat your Submission, each in connection with the Service, and (2) sublicense these rights. Microsoft will not pay you for your Submission. Microsoft may remove your Submission at any time. For each Submission, you represent that you have all rights necessary for you to make the grants in this section. Microsoft may access and/or disclose information about you, including contents of communications, in order to: (1) conform to legal requirements or respond to legal process; (2) ensure your compliance with this Agreement; or (3) protect the rights, property, or interests of Microsoft, its members, or the public.
Your use of any software associated with the Service will be governed by the terms and conditions of the end user license agreement (“EULA”) accompanying such software. If you receive any software that is not accompanied by a EULA, then Microsoft grants to you a non-exclusive, revocable, personal, non-transferable license to use such software solely in connection with the Service. Microsoft reserves all rights to such software not expressly granted to you in this Agreement. Such software is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in such software, and such software is licensed, not sold. The license granted you under this section for such software will terminate on the date your Service subscription terminates. Microsoft may disable such software after the date the Service terminates. You will not disassemble, decompile, or reverse engineer, such software or any equipment included in the Service. Microsoft may automatically check your version of such software and may automatically download upgrades to such software to your computer to update, enhance and further develop the Service.
10. PERFORMANCE AND USAGE INFORMATION
Microsoft may automatically upload performance and usage information for evaluating the Service and the software associated with the Service. Such information will not personally identify you. You may opt out of the automatic uploading of your usage information (but not performance information) as indicated in software associated with the Service.
11. MICROSOFT MAKES NO WARRANTY
MICROSOFT PROVIDES THE SERVICE “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. MICROSOFT, ITS AFFILIATES, ITS RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (COLLECTIVELY, THE “MICROSOFT PARTIES”) MAKE NO WARRANTIES. THE MICROSOFT PARTIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
12. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
12.1 THE MICROSOFT PARTIES’ AGGREGATE, CUMULATIVE LIABILITY RELATING TO THIS AGREEMENT AND YOUR USE OF THE SERVICE SHALL BE LIMITED TO YOUR ACTUAL, RECOVERABLE, DIRECT DAMAGES , IF ANY, WHICH DAMAGES IN NO EVENT SHALL EXCEED AN AMOUNT EQUAL TO YOUR SERVICE FEE FOR ONE MONTH. RECOVERY OF SUCH DAMAGES IN THIS AMOUNT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12.1, THE MICROSOFT PARTIES DISCLAIM ANY AND ALL LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICE.
12.2 IN NO EVENT SHALL ANY OF THE MICROSOFT PARTIES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICE, EVEN IF ANY OF THE MICROSOFT PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES UNDER SECTION 12.2 IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
12.3 THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 12 APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW.
13. CHANGES TO THE SERVICE; ADDITIONAL LIABILITY LIMITATION
THE MICROSOFT PARTIES MAY CHANGE THE SERVICE OR DELETE FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON. As you use the Service, you should expect to receive, access or use information, materials, graphics, software, data and content (collectively, “Content”) originated by Microsoft and persons other than Microsoft (any such person is referred to as a “Third Party”). WITHOUT LIMITING THE GENERALITY OF SECTIONS 11 AND 12, YOU ACKNOWLEDGE AND AGREE THAT THE MICROSOFT PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY’S UNAUTHORIZED ACCESS TO OR ALTERATIONS OF YOUR SERVICE ACCOUNT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 11 AND 12, YOU ACKNOWLEDGE AND AGREE THAT MICROSOFT IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SERVICE, (2) ANY INCOMPATIBILITY BETWEEN THE SERVICE AND OTHER SERVICES, SOFTWARE AND HARDWARE, OR (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE SERVICE IN AN ACCURATE OR TIMELY MANNER. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 11, 12 AND 13 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
14. MICROSOFT’S TERMINATION OF SERVICE
Microsoft may terminate or suspend the Service at any time, with or without cause, with or without notice. Upon termination of the Service, your right to use the Service will immediately cease, and Microsoft will have no obligation to provide the Service to you. UPON SUCH CANCELLATION OR SUSPENSION, MICROSOFT MAY STOP DELIVERY OF THE SERVICE, AND ANY INFORMATION YOU HAVE STORED ON THE SERVICE MAY NOT BE RETRIEVED LATER. Termination of the Service by Microsoft will not alter your obligation to pay all charges made to your Billing Account, except that, if Microsoft terminates the Service in its entirety without cause, then Microsoft will refund you on a pro-rata basis the amount of your payment corresponding to the portion of your subscription remaining after such termination.
15. YOUR TERMINATION OF SERVICE
You may terminate the Service at any time, with or without cause, upon notice to Microsoft as specified by the Service. If you are participating in any trial period offer, you must terminate the Service by the end of the applicable trial period to avoid incurring applicable charges. Certain Service promotions or plans may require termination charges, and you will pay all such termination charges as specified in the materials describing such promotion or plan. Termination of the Service by you will not alter your obligation to pay all charges made to your Billing Account.
16. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
Claims for enforcement, breach or violation of duties or rights under this Agreement will be adjudicated under the laws of the State of Washington, without reference to conflict of laws principles. All other claims, including, without limitation, claims under or for violation of state consumer protection laws, unfair competition laws, and in tort, will be adjudicated under the laws of your state of residence in the United States. You hereby irrevocably consent to the exclusive jurisdiction and venue of state or federal courts in King County, Washington, USA in all disputes arising out of or relating to the use of the Service.
17. INTERPRETING THE AGREEMENT; ASSIGNMENT
All provisions of this Agreement apply to the maximum extent permitted by applicable law. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. Microsoft may assign this Agreement, in whole or in part, at any time with or without notice to you. You may not assign this Agreement, or assign, transfer or sublicense any rights in the Service or your Billing Account. Except as expressly stated herein, this Agreement constitutes the entire agreement between you and Microsoft with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Microsoft with respect to the Service. The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
18. YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND MICROSOFT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
19. YOUR NOTICES TO MICROSOFT
Notices given by you to Microsoft must be given by e-mail and addressed as stated in the customer support area for the Service, or by postal mail. Send postal mail notices to Microsoft at Microsoft Corporation, Attention: MSN GamesCustomer Service, One Microsoft Way, Redmond, WA 98052-6399, USA.
20. MICROSOFT’S NOTICES TO YOU; CONSENT REGARDING ELECTRONIC INFORMATION
YOU CONSENT TO MICROSOFT PROVIDING YOU ANY INFORMATION THAT MICROSOFT IS REQUIRED BY LAW TO SEND TO YOU REGARDING THE SERVICE (“REQUIRED INFORMATION”) IN ELECTRONIC FORM. MICROSOFT MAY PROVIDE REQUIRED INFORMATION TO YOU (1) VIA E-MAIL AT THE E-MAIL ADDRESS YOU SPECIFIED WHEN YOU SIGNED UP FOR YOUR SERVICE, (2) BY ACCESS 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 (3) BY ACCESS TO A MICROSOFT WEB SITE THAT WILL BE GENERALLY DESIGNATED IN ADVANCE FOR SUCH PURPOSE. NOTICES PROVIDED TO YOU VIA E-MAIL WILL BE DEEMED GIVEN AND RECEIVED ON THE TRANSMISSION DATE OF SUCH E-MAIL. You may request a paper copy of any Required Information. You may request paper copies, withdraw your consent, or update your email address by following the instructions at https://billing.microsoft.com. If you choose to withdraw your consent, then Microsoft may terminate your Service. Microsoft must receive your paper copy request within 120 days from the date that Microsoft first provided the Required Information to you. Microsoft may charge a reasonable fee for providing such paper copies.
21. HARDWARE AND SOFTWARE REQUIREMENTS
To receive Required Information from Microsoft you must have an e-mail address, Internet Explorer 5.X (or above) or Netscape Navigator 6.x (or above), and software capable of sending and receiving e-mail via the Internet. Also, your computer must be able to print or store Required Information received in a plain-text formatted e-mail message or through a Microsoft Web site using the browser specified above. YOU CONFIRM THAT YOUR COMPUTER SATISFIES THE HARDWARE AND SOFTWARE REQUIREMENTS STATED ABOVE. YOU CONFIRM THAT YOU SPECIFIED A CURRENT E-MAIL ADDRESS FOR RECEIVING REQUIRED INFORMATION WHEN YOU SIGNED UP FOR YOUR SERVICE.