AZURE IP ADVANTAGE
Microsoft offers Microsoft
Azure IP Advantage Benefits to Qualified Customers of Microsoft Azure products
and services. These benefits are offered
subject to the following terms and conditions (“Terms”). By exercising the Microsoft Azure IP Advantage
Benefits, Qualified Customer agrees to be bound by these Terms.
means with respect to a given Entity (i) any other Entity Controlling,
Controlled by, or under common Control with, such given Entity (collectively “Controlled
Affiliate”), and (ii) Country-Specific Affiliates. An Entity shall be deemed an Affiliate only
so long as such Control exists.
Entity” means, at any given period of time, any Entity (including its
Affiliates) that earn (during the then-preceding
twelve (12) month period) more than fifty percent (50%) of their collective revenue through monetizing
their patents or patent applications by enforcement or licensing of third party
commercial software, product or service offerings that do not compete with any bona-fide
commercial software, product or service offerings of such Entity (including its
Affiliates); provided, however, an Asserting Entity does not include (i)
Microsoft or its Affiliates, or (ii) any Entity formed primarily for the
purpose of acquiring and selling patents for defensive purposes such as offering
rights similar to the “Patent Pick” rights set forth in these Terms.
means the current and future cloud services platform and technologies of
Microsoft or its Affiliates, including (i) the cloud services platforms and
technologies described at https://azure.microsoft.com/en-us/ and successor sites, and (ii) the cloud software
solutions offered by Microsoft or its Affiliates that a customer may use to
create and operate a cloud running in the customer’s on-premises environment, currently
referred to as Azure Stack.
“Commercial Entity” means any Entity (other
than Microsoft or its Affiliates) that has substantial software, product or
service offerings against which a meaningful patent infringement lawsuit may be
means direct or indirect (a) ownership of more than fifty percent (50%) of the
outstanding shares representing the right to vote for members of the board of
directors or other managing officers of an entity, or (b) for an entity that
does not have outstanding shares, more than fifty percent (50%) of the
ownership interest representing the right to make decisions for such
“Country-Specific Affiliates” means any Entity (i) through
which a party or its Controlled Affiliates are conducting their primary
business in a specific geographic area with respect to any of their software,
hardware, technology, products, services or other offerings, and (ii) for which
either (a) such party or such Controlled Affiliate owns less than 50% of such
Entity’s equity interest due to regulatory requirements prohibiting 50% or more
ownership, or (b) in China only, a party or its Controlled Affiliates owns at
least 45% of such Entity’s equity interest; provided that such Entity is only a
Country-Specific Affiliate to the extent that it is conducting such primary
business of a party or its Controlled Affiliates.
“Entity” means any individual,
person, trust, corporation, partnership, joint venture, limited liability
company, association, unincorporated organization, and any other legal or
means to assert a patent infringement claim in a lawsuit; provided, however,
Initiate does not include a first Entity asserting a patent infringement claim in
a lawsuit against a second Entity (or its Affiliates) if such second Entity (or
its Affiliates) filed a patent infringement lawsuit against such first Entity
(or its Affiliates) less than six (6) months prior to such first Entity
asserting such patent infringement claim.
means Microsoft Corporation.
means Microsoft Technology Licensing, LLC.
means Qualified Customer and Microsoft.
means any patent or patent application in any country, except design patents
and design registrations, that are owned by Microsoft, MTL or their Affiliates.
“Patent Request Form” means the form specified
by MTL that a Qualified Customer may use to request to purchase a Patent from
the Patent List. An exact copy of this
form is available by request to email@example.com.
Sales Agreement” means an agreement in the form specified by MTL that
is executed between MTL and a Qualified Customer for the sale of a Patent. An exact copy of this form is available by
request to firstname.lastname@example.org.
has the meaning set forth in Section 4.1.
Customer” means a customer that has
paid One Thousand US Dollars (US $1,000.00) or more each month in the
then-preceding three (3) month period for the usage by such customer or its
Affiliates of Azure software or services operated by Microsoft. For the avoidance of doubt, in cases where a customer
prepays for Azure or makes other Azure monetary commitments, it is the value of
the Azure usage and not the pre-payment value that determines
qualification. Qualified Customers must
be bona fide users of Azure and do not include any Entity (including its
Affiliates) that markets and sells its own cloud services platform as an
alternative to Azure, including, without limitation, Google, Amazon and IBM,
and their Affiliates.
means (i) a sale, transfer or assignment of a Patent owned by Microsoft, MTL or
their Affiliates to an Asserting Entity; and (ii) an exclusive license grant to
an Asserting Entity of one or more claims of a Patent; provided, however, any
licenses, releases or other rights provided to a Qualified Customer and its
Affiliates under these Terms shall be limited to the extent of such exclusive
License Grant. During the
Term, if Microsoft, MTL or their Affiliates (“Microsoft Entity”) Transfer
a Patent to an Asserting Entity (“Transferred Patent”), then effective
immediately prior to such Transfer, such Microsoft Entity hereby grants a
nonexclusive, nonsublicensable, royalty-free, fully paid-up,
worldwide, nontransferable, perpetual, irrevocable license (and release for
past activity) under the Transferred Patent to each then-eligible Qualified
Customer and its then-current Affiliates to make, have made (exclusively for
such Qualified Customer and such Affiliates), use, sell, offer for sale, import,
distribute, lease, and otherwise dispose of software and
services of such Qualified Customer and such Affiliates but only to the extent
such software and such services are running on Azure.
Rights. The licenses and releases provided in these
Terms are non-extendible, nonexclusive, nontransferable, and shall not provide
any enforcement rights with respect to any Patents to a Qualified Customer, its
Affiliates or any third parties. No
additional rights (including any implied patent licenses, covenants, releases,
immunities or other rights) are granted by the licenses or releases contained
in these Terms, through implication, exhaustion, estoppel or otherwise. Notwithstanding anything to the contrary in these
Terms, Microsoft, MTL and their Affiliates are not bound by, and do not grant
any license, covenant, release, immunity or other right or incur any other
obligations as a result of, any downstream licensing obligations of a Qualified
Customer or its Affiliates, including with respect to any other license agreements
with a third party. Without limiting the
generality of the foregoing, the licenses and releases contained in these Terms
do not include, and are conditioned upon Qualified Customer, its Affiliates,
and all other Entities not receiving, any license, right, release or covenant under
these Terms (a) to any portions of the software or services not covered by any
Transferred Patent (e.g. related or enabling technologies); (b) to encumber,
license or sublicense any Transferred Patent; or (c) under any patents or other
intellectual property rights other than the Transferred Patents even if such
patents or other intellectual property are necessary for practicing any
List. MTL has
published the Patent List on a publicly available website, organized by
technology areas. MTL has used reasonable
efforts to make patents available on the Patent List that have the potential to
be helpful to a general pool of Azure customers for the defensive purposes set
forth in these Terms, but MTL does not guarantee that any patents in the Patent
List will be useful to a Qualified Customer.
MTL will maintain the list and may add and remove patents to and from
the Patent List at its discretion.
MTL Ownership Rights. A Qualified Customer has no right, title or
interest in any patents in the Patent List unless and until MTL and Qualified
Customer have executed a Patent Sales Agreement, and Qualified Customer hereby
waives any such rights, title and interest to the extent any are deemed to
exist. MTL is the sole owner of the
patents in the Patent List, and in its sole discretion, may fully exert its ownership
rights at all times, including prosecuting, licensing, encumbering, selling,
transferring and enforcing the patents, through litigation or otherwise,
including during and after the Term. If MTL
sells any of the patents in the Patent List, or files a patent lawsuit
including any patents in the Patent List, such patents shall be deemed to be automatically
removed from the Patent List. If a
patent is removed from the Patent List for any reason, a Qualified Customer
shall no longer be able to purchase such patent under these Terms.
Patent Request Form. During the Term, if a Qualified Customer or
its Affiliates are sued by a Commercial Entity (such Entity including its current
Affiliates, “Plaintiff”) for utility patent infringement with respect to
software or services deployed by a Qualified Customer or its Affiliates on
Azure (“Plaintiff Lawsuit”), then a Qualified Customer may, within six
(6) months of the filing of such Plaintiff Lawsuit, submit a request to MTL to
purchase a single Patent from the then-current Patent List by fully completing and
sending to MTL a Patent Request Form; provided, however, only one Patent may be
purchased per Plaintiff Lawsuit, and only one Patent may be purchased during
any given one year period. If all of the
Conditions have been met, MTL will sell the requested Patent to a Qualified
Customer by executing the Patent Sales Agreement. Any Patent Request Forms submitted by a
Qualified Customer shall be deemed incorporated into these Terms and are
subject to all of these Terms.
Conditions. The following
conditions (“Conditions”) must be met prior to MTL executing any Patent
Qualified Customer was a Qualified Customer on
the date of the filing of the Plaintiff Lawsuit and on the date of submitting
the Patent Request Form, and Qualified Customer has not (and its Affiliates have
not) maintained a lawsuit Initiated by Qualified Customer (or its Affiliates)
against Microsoft, its Affiliates or their customers for patent infringement
with regard to Azure or software or services running on Azure within two years
prior to the date of the Patent Request Form.
infringement claim in the Plaintiff Lawsuit is not subject to an
indemnification obligation by Microsoft, a supplier of Qualified Customer or
any other Entity.
Customer reasonably believes that Plaintiff is infringing the Patent identified
in the Patent Request Form and intends in good faith to assert such patents
against Plaintiff in the Plaintiff Lawsuit with respect to the specific software,
products or services of Plaintiff identified in the Patent Request Form (“Identified
not have a license or similar rights to the Patent with respect to the
Identified Products and Microsoft or any of its Affiliates are not obligated to
provide such license or similar rights to Plaintiff upon the sale or assignment
of such patents.
Customer submits the Patent Request Form to MTL within six (6) months of the
filing of the Plaintiff Lawsuit, and the Patent Request Form is fully and
accurately completed, including attaching a properly and fully executed Patent
MTL reasonably believes
that all of the above conditions in this Section 4.2 have been met, the
Qualified Customer is a bona fide user of Azure, and all of the conditions and
representations in the Patent Request Form, are true.
to Submission. Within thirty (30) days of receipt of the
Patent Request Form, MTL will reject or accept the submission. If MTL rejects the submission, MTL will state
the reason(s) for the rejection in its response. If MTL accepts the submission, MTL will
execute the Patent Sales Agreement attached to the Patent Request Form and the
parties will perform under the terms and conditions of such Patent Sales Agreement.
No Assistance. Qualified
Customer understands and acknowledges that Microsoft and MTL will provide no
guidance, diligence or other assistance to Qualified Customer regarding which
patents, if any, Qualified Customer will identify in any submission.
Term. The period of
applicability of these Terms (“Term”) shall commence on the date
these Terms are posted by Microsoft (“Effective Date”) and terminate on
the earlier of (i) the date of termination of these Terms, or (ii) for any
given Qualified Customer, the date on which such Qualified Customer is no
longer a Qualified Customer.
Termination. These Terms
and the benefits hereunder may be terminated by Microsoft at any time by
providing six (6) months’ notice of termination. Only Sections 5 and 6 shall survive the
expiration or termination of these Terms.
Customer understands that these Terms are benefits provided to Qualified
Customer as part of Microsoft Azure IP Advantage Benefits and will, by necessity,
need to be updated and improved over time.
As such, Microsoft reserves the right to update these Terms by providing
Qualified Customer with ninety (90) days’ notice of any such updates.
and Jurisdiction. The validity,
construction, and performance of these Terms shall be governed by and construed
first in accordance with the federal laws of the United States to the extent
federal subject matter jurisdiction exists, and second in accordance with the
laws of the State of New York, exclusive of its choice of law rules. With respect to all civil actions or other
legal or equitable proceedings directly arising between the parties or any of
their Affiliates under these Terms, the parties consent to exclusive jurisdiction
and venue in the United States District Court for the Southern District of New
York (the “Forum”) unless no federal jurisdiction exists, in which case
the parties consent to exclusive jurisdiction and venue in the state courts
located in the borough of Manhattan, New York (the “Alternate Forum”). The parties irrevocably consent to personal
jurisdiction and waive the defense of forum
non conveniens in the Forum, or Alternate Forum, if applicable, with
respect to themselves and their Affiliates.
Process may be served on any party in the manner authorized by
applicable law or court rule.
Transfer Taxes. Qualified
Customer is responsible for and shall timely pay any sales, use, value added,
goods and services, or other transfer taxes, documentary charges, recording
fees, or similar taxes, charges, or fees arising from or in connection with any
sale, assignment, and transfer of any patents to the Qualified Customer.
DAMAGES. UNLESS OTHERWISE REQUIRED BY
APPLICABLE LAW, NO MICROSOFT ENTITY SHALL BE LIABLE TO QUALIFIED CUSTOMER FOR
LOSS OF PROFITS, OR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER
CAUSED, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
LIABILITY. WITHOUT WAIVING ANY OTHER RIGHTS OF ANY
MICROSOFT ENTITY, INCLUDING ANY RIGHT TO SEEK SPECIFIC PERFORMANCE OR SEEK
OTHER EQUITABLE RELIEF, THE MICROSOFT ENTITIES’ TOTAL CUMULATIVE LIABILITY
UNDER THESE TERMS SHALL NOT EXCEED FIFTY THOUSAND US DOLLARS (US $50,000.00).
THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN
ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THESE TERMS.
REPRESENTATIONS AND WARRANTIES. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, NO
PARTY MAKES ANY REPRESENTATION OR WARRANTY EXCEPT FOR THEIR RESPECTIVE
REPRESENTATIONS AND WARRANTIES SET FORTH IN ANY PATENT REQUEST FORM OR ANY
EXECUTED PATENT SALES AGREEMENT, AND THE MICROSOFT ENITIES DISCLAIM ALL IMPLIED
WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. NO MICROSOFT
ENTITY GIVES QUALIFIED CUSTOMER ANY WARRANTY OR ASSURANCE (A) REGARDING THE
PATENTABILITY OF ANY CLAIMED INVENTION IN, OR THE VALIDITY, OF ANY PATENT OR
(B) THAT MANUFACTURE, USE, SALE, OFFERING FOR SALE, IMPORTATION, EXPORTATION OR
OTHER DISTRIBUTION OF ANY SOFTWARE, PRODUCT OR SERVICE DISCLOSED AND CLAIMED IN
ANY PATENT WILL NOT CONSTITUTE AN INFRINGEMENT OF THE INTELLECTUAL PROPERTY
RIGHTS OF OTHER PERSONS. EXCEPT AS
SPECIFICALLY PROVIDED IN THE PATENT SALES AGREEMENT, THE PATENTS ARE LICENSED
AND SOLD “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY.
with Laws. Notwithstanding anything
contained in these Terms to the contrary, the obligations of the parties shall
be subject to all laws, present and future, of any government having
jurisdiction over the parties and this transaction, and to orders, regulations,
directions or requests of any such government.
Agreement. These Terms constitute the entire agreement
between the parties with respect to the subject matter hereof, and merges and supersedes all prior and
contemporaneous oral agreements, understandings, negotiations and discussions.
Neither of the parties shall be bound by any conditions, definitions,
warranties, understandings, or representations with respect to the subject
matter hereof other than as expressly provided herein. The section headings
contained in these Terms are for reference purposes only and shall not affect
in any way the meaning or interpretation of these Terms. Except as provided in
Section 5.3, no amendments or modifications shall be effective unless in
writing signed by authorized
representatives of both parties. These Terms will prevail
notwithstanding any different, conflicting or additional terms and conditions
which may appear on any purchase order, acknowledgment or other writing not
expressly incorporated into these Terms.
Notices. Qualified Customers may request a Patent
Request Form and Patent Sales Agreement by sending a request in writing to email@example.com. Completed Patent Request Forms
and Patent Sales Agreement shall be delivered by hand, or dispatched by prepaid
air courier or by registered or certified airmail, postage prepaid, addressed
Such notices to Microsoft or MTL shall be deemed received
when actually received by addressee or, if delivery is not accomplished by
reason of some fault of the addressee, when tendered for delivery. Microsoft or MTL may give notice of a change
of address and, after notice of such change has been received, any notice or
request shall thereafter be given to Microsoft or MTL at such changed address. Notices to Qualified Customer may be provided
online by updating these Terms.
of Parties. The parties hereto are independent contractors. No
party has any express or implied right or authority to assume or create any
obligations on behalf of the other or to bind the other to any contract,
agreement or undertaking with any third party. Nothing in these Terms shall be
construed to create a partnership, joint venture, employment or agency
relationship between Microsoft, MTL and a Qualified Customer.
Severability. The terms and
conditions stated herein are declared to be severable. If any section, paragraph,
provision, or clause in these Terms shall be found or be held to be invalid or
unenforceable in any jurisdiction in which these Terms is being performed, the
remainder of these Terms shall be valid and enforceable and the parties shall
use good faith to negotiate a substitute, valid and enforceable provision which
most nearly effects the parties’ intent in entering into these Terms.
Waiver. Failure by any
party to enforce any term of these Terms shall not be deemed a waiver of future
enforcement of that or any other term in these Terms.
Construction. As used in these Terms, (a) the words
“include” and “including” and variations thereof, will not be deemed to be terms of limitation, but rather will
be deemed to be followed by the words “without limitation,” and (b) unless the
context otherwise requires, the word “or” shall be deemed to be an inclusive
“or” and shall have the meaning equivalent to “and/or.”
Assignment. These Terms shall inure to the benefit of, and shall
be binding upon, any successors, assigns and other legal representatives of
Microsoft and Qualified Customer.