Third Party Software Terms

Third Party Software Terms

Rootaxcess may use or make available to Client certain Third Party Software in connection with Rootaxcess’ cloud computing services, including but not limited to Virtual Datacenter, Cloud Servers, Cloud Products and/or Private Cloud. Notwithstanding anything to the contrary in the Agreement, Client’s use of and access to such Third Party Software is subject to and conditioned on Client’s compliance with the following license and other terms and conditions, which include terms and conditions required by applicable licensors and providers. The linked document(s) below are incorporated into these Third Party Software Terms by reference, and capitalized terms used but not defined herein have the meanings set forth in the Rootaxcess Terms of Service, as applicable.

Notwithstanding anything to the contrary in the Agreement, if required to comply with Rootaxcess’ agreements with the applicable licensors of the Third Party Software, Rootaxcess may amend these Third Party Software Terms, including the linked document(s) above, from time to time by posting the updated version of these Third Party Software Terms at this URL or such linked URL(s).

For purposes of this document and the linked documents above, references to “Client” refer to the entity that has engaged Rootaxcess to provide the applicable Offering, and includes the entities referred to as “Client” and “Service Provider” in the Rootaxcess agreements that govern such Offerings.

Microsoft – Third Party Software Terms

Client’s use of any MS Applications and other Third Party Software and Third Party Services provided by Microsoft is subject to and conditioned on Client’s and the Authorized Users’ acknowledgement of and compliance with the following terms and conditions:

1. No High Risk Use. Client acknowledges that the MS Applications are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Client will not, and will ensure that its Authorized Users do not, use any MS Application in any application or situation where such MS Application’s failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). Examples of High Risk Use include: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of MS Applications for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-control applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function. Client agrees to indemnify, defend and hold harmless Rootaxcess and Microsoft from any third-party claim arising out of Client’s or any Authorized User’s use of the MS Applications in connection with any High Risk Use.

2. Proprietary Notices and Trademarks. Client will not, and will ensure that its Authorized Users do not, remove, modify or obscure any copyright, trademark, patent or other proprietary rights notices that are contained in or on the MS Applications. Client and its Authorized Users have no right under this Agreement to use any Microsoft logos in any manner whatsoever, and must not undertake any action that will interfere with or diminish Microsoft’s (or Microsoft’s suppliers’) right, title and/or interest in their respective trademarks or trade names.

3. End User License Terms. Client will, and will ensure that its Authorized Users, comply at all times with the Microsoft “End User License Terms” located here (hereby incorporated herein by this reference), as may be amended by Rootaxcess from time to time.

4. Indemnity. Client agrees to indemnify, defend and hold harmless Rootaxcess and Microsoft from any claim arising as a result of: (a) any software virus introduced by Client or any Authorized User; (b) Client’s or any Authorized User’s violation of these Third Party Terms; and (c) unauthorized installation, use, access, copying, reproduction, and/or distribution of any portion of the MS Applications by Client or an Authorized User. In addition, Client will be responsible and liable to Rootaxcess for all damages, costs, and expenses, including reasonable attorneys’ fees, resulting from Client’s continued use of an allegedly infringing MS Application after Rootaxcess has provided Client with notice to cease such use.

5. License Mobility. If Client accesses or uses any MS Applications or other Services through License Mobility, then the following shall apply:

a. All terms and conditions of Client’s license and other agreements with Microsoft, including those concerning License Mobility and Volume Licenses, remain in full force and effect and are not superseded or modified by this Agreement.

b. Before accessing any MS Applications, Client shall be required to complete the “Mobility Verification Form” located at http://www.microsoft.com/licensing/software-assurance/license-mobility.aspx (or a successor site designated by Microsoft), submit the completed Mobility Verification Form to Microsoft for verification, and certify to Rootaxcess that such completed and submitted form has been received by Microsoft (including by providing Rootaxcess with a copy of such form, any acknowledgement of its receipt, and other related information requested by Rootaxcess). Client will retain copies of all Mobility Verification Forms and related documentation and will provide Rootaxcess with copies thereof upon request.

c. Client acknowledges and agrees that each of Client’s License Mobility licenses for each MS Application must remain on the Hybrid Platform or Hosted Private Platform, as applicable, for a minimum of ninety (90) days, even if any Services are terminated by either party with or without cause.

6. SPUR and PUR. Microsoft makes the MS Applications available subject to the “Services Provider Use Rights” (“SPUR”), located at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=2, and the “Product User Rights” (“PUR”), located at http://www.microsoft.com/licensing/about-licensing/product-licensing.aspx, or at successor sites designated by Microsoft. Client will, and will ensure that its Authorized Users, at all times (a) comply with the SPUR and PUR as they relate to the MS Applications and (b) cooperate with Rootaxcess (including by performing any obligations required under the SPUR or PUR or as otherwise requested by Rootaxcess) to ensure Rootaxcess’ compliance with the SPUR and PUR.

7. Verification. Microsoft reserves certain rights to verify compliance with its license terms and conditions, including by accessing certain facilities where MS Applications are hosted or used, in each case either itself or through an independent auditor. Client agrees to cooperate with Rootaxcess, Microsoft, and any such auditor in facilitating Microsoft’s compliance verification, including by providing any records, responses and other information and materials requested thereby.