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Terms and Conditions for Windows Phone Preview for Microsoft Band users

These Terms and Conditions for Windows Phone Preview for Microsoft Band users (the "Agreement"), are between Microsoft Corporation ("Microsoft") and you. Your use of any of the Deliverables shall constitute your binding acceptance of all of the terms and conditions of this Agreement.

IF YOU LIVE IN (OR IF A BUSINESS YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES, SECTION 9 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH MICROSOFT. PLEASE READ IT.

Installing this preview software will likely void any warranty on your phone and may cause damage to your phone and data stored on your stored on your phone. Please read Sections 4 and 7 before installing it.

1. Notices

  1. Data Usage/Mobile Operator. When you use the Deliverables, you may incur charges with your mobile operator related to voice, Internet access, data transfer and other services per the terms of the data service plan and any other agreements you have with your mobile operator. You are solely responsible for all of these charges. Your mobile operator may also have specific terms and conditions, terms of use, and privacy policies that you must comply with. The Windows Phone may also automatically check for updates and updates may install automatically on the Windows Phone via the Windows Phone Update technology in the Windows Phone software. If your Windows Phone is network certified you can control usage of cellular data from the cellular data settings found in general phone settings.
  2. Non-Commercial Quality. The Deliverables may be prerelease and may not be compatible or work as well as a commercial, retail offering. The Deliverables may not work correctly and are not intended as a substitute for your primary means of telecommunications.
  3. Registry key/Data collection. The Windows Phone Preview app for Microsoft Band users (“Windows Phone Preview”) will set a registry key on your Windows Phone to enable the app to download one or more preview updates. Microsoft will not collect information about your Windows Phone through the app.

2. Definitions

  1. “Deliverables” mean the following:
    1. The Windows Phone Preview and Windows Phone software and updates provided to you under this Agreement, including any Third-Party Software (as defined below);
    2. Prerelease services available via the Windows Phone and other prerelease materials Microsoft may deliver in connection with the Windows Phone; and
    3. Support services, if any.
  2. "Windows Phone(s)" means a mobile phone or development hardware running (i) Windows Phone operating system software, including associated services offered by Microsoft and (ii) any Third-Party Software.

3. License grant

  1. License to Deliverables. Microsoft grants to you a nonexclusive, royalty-free, personal, nontransferable license to use the Deliverables solely for:
    • Installation on a Windows Phone owned by you, including any updates;
    • Evaluating and testing the Deliverables with the Microsoft Band and related software; and
    • Providing feedback to Microsoft.
  2. License Limitations and Reservation of rights. This Agreement grants you a license to use the Deliverables as provided for in Section 3.a. Microsoft does not intend to sell or otherwise transfer the Deliverables, or any intellectual property rights in the Deliverables, to you. Except as expressly licensed under Section 3.a, Microsoft and its licensors retain all of their right, title and interest in and to the Deliverables, and no other intellectual property rights or license rights are granted to you, either expressly or by implication, estoppel or otherwise.
  3. License limitations. Except as expressly provided in this Agreement or as permitted by law, you will not, and will not permit or authorize third parties to:
    1. Reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Deliverables;
    2. Sell, rent, lease, or otherwise place the Deliverables into any channel of commerce;
    3. Sublicense the Deliverables; or
    4. Provide, make available to, or permit the use of the Deliverables by any third party that is not your employee or a contractor except with written permission by Microsoft and subject to the terms in Section 7.
  4. Third-Party Software. The Deliverables may contain third-party software and its updates, ("Third-Party Software"). Your use of this Third-Party Software may be subject to separate license agreements containing additional terms and conditions (“Third-Party Software License Agreements”). In addition to the terms and conditions in this Agreement, you agree to comply with these Third-Party Software License Agreements when you use the Third-Party Software.
  5. Additional Terms. You may be prompted to accept additional contract terms that govern your installation and use of other software or services offered in connection with the Windows Phone. These contract terms are separate from and do not change or replace the terms of this Agreement.

4. Support

The Deliverables are provided “as is" and Microsoft may not provide support services for them. The Deliverables include prerelease software that may not be compatible with or perform as well as final, commercially available products. The Windows Phone software may be designed to stop functioning after a particular date. Microsoft is not responsible for restoring the Windows Phone to a working condition or for restoring any lost data. Microsoft, its licensors or its suppliers are not required to make any prerelease Deliverables commercially available.

5. Feedback

If you give feedback about the Deliverables to Microsoft, you give to Microsoft, without charge, the non-exclusive license under your owned or controlled intellectual property rights, to make, use, modify, distribute and otherwise commercialize the feedback as part of any Microsoft offering. You will not give feedback that is subject to a license that requires Microsoft to license its software or documentation to third parties because Microsoft includes your feedback in them.

6. Term and termination

  1. Term. This Agreement will be effective until terminated.
  2. Termination for convenience. You agree that Microsoft may immediately terminate this Agreement at any time without notice, for any reason and without liability.
  3. Effect of termination. Unless otherwise requested by Microsoft, you may keep the Windows Phone software installed on a Windows Phone owned by you as long as you use the software according to the terms of this Agreement.
  4. Survival. Sections 3.b through 3.d, 5, 6, 7, 8, 9, and 10 will survive expiration or termination of this Agreement.

7. Disclaimer of warranties

  1. General. To the maximum extent permitted by law, the Deliverables are provided to you “as is” and with all faults. You bear the entire risk of using the Deliverables. Except as provided herein, Microsoft, on behalf of itself, its licensors and its suppliers, expressly disclaims all express, implied, or statutory warranties. This includes the warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Microsoft, its licensors and its suppliers do not warrant that the Deliverables are error free or that operation of the Windows Phones will be secure or uninterrupted.
  2. INSTALLING WINDOWS PHONE SOFTWARE ON A WINDOWS PHONE THAT YOU OWN.

    BY INSTALLING WINDOWS PHONE SOFTWARE UPDATES AVAILABLE THROUGH THIS PROGRAM, THE FOLLOWING MAY OCCUR:


    1. YOU WILL LIKELY VOID ANY MANUFACTURER OR MOBILE OPERATOR WARRANTY FOR YOUR PHONE.
    2. YOU MAY CAUSE IRREPARABLE HARM TO YOUR PHONE, INCLUDING LOSS OF ALL DATA. DATA INCLUDES SMS TEXT MESSAGES, GAME INFORMATION AND APPLICATION INFORMATION, AS WELL AS MUSIC, VIDEOS, PHOTOS AND EMAIL. ADDITIONAL DATA NOT LISTED HERE MAY ALSO BE LOST.
  3. YOU AGREE TO WAIVE ANY SUPPORT FOR YOUR WINDOWS PHONE FROM THE MANUFACTURER OF YOUR WINDOWS PHONE AND MOBILE OPERATOR OF THE NETWORK THAT YOUR WINDOWS PHONE WORKS ON. YOU AGREE TO WAIVE ANY RIGHT TO RETURN YOUR WINDOWS PHONE TO YOUR APPLICABLE MANUFACTURER OR MOBILE OPERATOR.

8. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES

If you have any basis for recovering damages from Microsoft, its licensors, or its suppliers, you can recover only direct damages up to U.S. $5.00. You cannot recover any other damages, including consequential, lost profits, special, indirect, incidental, or punitive damages.

This limitation applies to

It also applies even if Microsoft, its licensors or its suppliers knew or should have known about the possibility of the damages.

9. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOU LIVE IN (OR IF A BUSINESS YOUR PRINCIPAL PLACE OF BUSINESS IS IN) THE UNITED STATES

This section applies to any dispute EXCEPT DISPUTES RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, YOUR LICENSORS’, MICROSOFT’S, OR MICROSOFT’S LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between you and Microsoft concerning the Deliverables or this Agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.

a. Notice of Dispute. In the event of a dispute, You or Microsoft must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399, U.S.A. A form is available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245499). Microsoft will send any Notice of Dispute to You by U.S. Mail to Your address if we have it, or otherwise to Your email address. You and Microsoft will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, You or Microsoft may commence arbitration.

b. Small Claims Court. You may also bring any dispute in small claims court in your county of residence (or if a business your principal place of business) or King County, Washington, U.S.A. if the dispute meets all requirements to be heard in the small claims court. You may sue in small claims court whether or not you negotiated informally first.

c. Binding Arbitration. If you and Microsoft do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by individual binding arbitration governed by the Federal Arbitration Act (“FAA”). Class arbitrations are not permitted. You are giving up the right to sue in court before a judge or jury (or participate in court as a party or class member). Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

d. Class Action Waiver. Any proceedings to resolve any dispute in any forum will be conducted solely on an individual basis. Neither you nor Microsoft will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

e. Arbitration Procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules (or if you are an individual and use the Deliverables for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Deliverables, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To commence arbitration, submit the form available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245497) to the AAA. You agree to commence arbitration only in your county of residence (or if a business your principal place of business) or in King County, Washington, U.S.A. Microsoft agrees to commence arbitration only in your county of residence (of if a business your principal place of business). You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually, and only to the extent required to satisfy your individual claim.

f.   Arbitration Fees and Payments.

i. Disputes Involving $75,000 or Less. Microsoft will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If You reject Microsoft’s last written settlement offer made before the arbitrator was appointed (“Microsoft’s last written offer”), your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than Microsoft’s last written offer, Microsoft will: (i) pay the greater of the award or $1,000; (ii) pay your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless you and Microsoft agree on them.

ii. Disputes Involving More than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses..

iii. Disputes Involving Any Amount. In any arbitration you commence, Microsoft will seek its AAA or arbitrator’s fees and expenses, or your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Microsoft commences, Microsoft will pay all filing, AAA, and arbitrator’s fees and expenses. Microsoft won't seek its attorney’s fees or expenses from you in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.

g. Conflict with AAA Rules. This Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.

h. Claims or Disputes Must Be Filed Within One Year.  To the extent permitted by law, any claim or dispute to which Section 9 applies must be filed within one year in small claims court (Section 9.b), or in arbitration (Section 9.c), or in court, if Section 9 permits the dispute to be filed in court instead of arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If such a claim or dispute is not filed within one year, it is permanently barred.

i. Severability. If the class action waiver in Section 9.d is found to be illegal or unenforceable as to all or some parts of a dispute, then Section 9 won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of Section 9 is found to be illegal or unenforceable, that provision will be severed with the remainder of Section 9 remaining in full force and effect.

10. Miscellaneous

  1. Relationship. This Agreement does not create a partnership, joint venture, or agency relationship between the parties or grant a franchise.
  2. Notices. Microsoft may provide notices to you either by electronic or physical mail based on the contact(s) and location(s) information provided on the first page of this Agreement. You will promptly notify Microsoft in writing if there are any changes in this information.
  3. Court of Venue and Governing Law.

    United States. If you live in (or if a business, your principal place of business is in) the United States, the laws of the state of where you live (or if a business where your principal place of business is located) govern the interpretation of this Agreement, claims for breach of it, and all other claims (including consumer protection, unfair competition, and in tort), regardless of conflict of law principles, except that the Federal Arbitration Act governs all provisions relating to arbitration. You and we irrevocably consent to exclusive jurisdiction and venue of the state or federal courts in King County, Washington, for all disputes arising out of or relating to the Deliverables or this Agreement that are heard in court (not arbitration and not small claims court).

    Outside the United States. If you live (or if a business your principal place of business is located) outside the United States, the laws of that country apply.

  4. Assignment. You may not assign this Agreement without Microsoft’s prior written consent.
  5. Taxes. You are solely responsible for all taxes associated with your receipt or use of the Deliverables.
  6. Export Restrictions. The Deliverables are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Deliverables. These laws include restrictions on destinations, end users and end use. For additional information, see http://www.microsoft.com/exporting.
  7. Waiver. A party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.
  8. Severability. If any arbitrator or court of competent jurisdiction determines that any provision of this Agreement is illegal or unenforceable, the remaining provisions will remain in full force and effect. Section 9.i says what happens if parts of Section 9 (arbitration and class action waiver) are found to be illegal or unenforceable. Section 9.i prevails over this section if inconsistent with it.
  9. Entire Agreement. This Agreement is the entire agreement between the parties regarding its subject matter.