Microsoft Dynamics and Power Platform Customer Programs (“Program”) Agreement

Last Updated: May 2020

This Microsoft Dynamics and Power Platform Customer Programs Agreement (“Agreement”) is a contract between Microsoft Corporation (or based on where you live, one of Microsoft’s affiliates) (“Microsoft”) and you (if you were invited to participate as an individual) or the entity you represent which has authorized you to enter this Agreement on its behalf (if you are entering into this Agreement on behalf of your employer or other entity). “Participant” or “you” means the individual or entity entering into this Agreement with Microsoft.

By accessing or using the Program Materials or any Preview (defined below), you accept this Agreement, effective as of the date of first access or use (“Effective Date”). If you access any Preview as an individual, you must provide your valid email address. If you access any Preview on behalf of your employer or other entity you represent, you must provide a valid email address associated with that organization. If you do not accept these terms, you must not (and have no right to) access any Preview.

The parties agree as follows:

1. Overview. This Agreement governs Participant’s participation in the Program, a Microsoft offering through which Participant may access certain tools and information and view and apply for early access to preview versions of certain Microsoft online services and software for which Participant is eligible (each such preview version, a “Preview”). If Participant applies or Microsoft invites Participant, and Microsoft, in its sole discretion, selects Participant for a Preview, Microsoft will notify and grant Participant access to it. Such notice will be by email and may include additional or different terms applicable to that Preview (“Preview Terms”). Microsoft may update the available Previews in the Program from time to time.
1. Program Materials. Participant will comply with the Program Materials related to its participation in the Previews. “Program Materials” means, collectively, whether labeled as “Program Materials” or not, all materials that describe a Preview that Microsoft makes available to Participant, including invitations, materials specifying requirements or eligibility criteria, program participation guides, and Preview documentation.
2. Feedback. Participant must provide regular Feedback to Microsoft as a condition of participating in the Program. If Participant has not provided Feedback through the Program portal within a 6-month period, the account may be disabled, and Microsoft may cancel your participation in the Program. Microsoft will contact you at the email address you provided during the Program enrollment process to notify you 30 days prior to termination. Participant may give Microsoft suggestions, comments, input, ideas, know-how, in any form, (“Feedback”). If Participant provides Feedback to Microsoft, then Participant grants to Microsoft, without charge, the non-exclusive license under Participant’s owned or controlled Intellectual Property rights, to make, use, modify, distribute, grant copyright and trade secret sublicense rights to, and otherwise commercialize such Feedback in any way and for any purpose and exercise all other rights in Feedback in any way. The license granted to Feedback provided under this Agreement will survive termination of this Agreement. Participant represents and warrants that (i) you will not provide Microsoft with Feedback containing Personal Data or other data that is subject to legal or regulatory compliance requirements. “Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more Feedback factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; (ii) you own or otherwise controls all rights to such Feedback and that Feedback is not subject to any third-party rights; and (iii) Feedback is not subject to a license that requires Microsoft to license its software, service or documentation to third parties because Microsoft includes your Feedback in them.
2. Use of Previews. If you access a Preview under this Agreement and no Preview Terms are made available, following will apply to your access and use of Previews:
1. Required Offerings. Certain Microsoft services or software may be necessary to use a particular Preview (“Required Offerings”). Microsoft does not grant any rights under this Agreement to access or use Required Offerings; rather, Required Offerings are separately licensed to Participant under a Microsoft Licensing Agreement (“MLA”), which may require paying a fee. The Required Offerings for a given Preview will be identified in the Preview Terms or Program Materials.
2. Rights. During the Term, Microsoft grants Participant a non-exclusive, non-transferable, non-sublicensable right to access and use, solely in accordance with this Agreement, any Previews that Microsoft selects Participant to participate in. This Section 2(b) extends to Participant’s authorized users, and Participant is fully liable for their use.
3. Use terms. Participant acknowledges that: (i) Previews may not work correctly or the same way that a commercial version may work; (ii) if Microsoft elects to provide support for any Previews, such support will be provided “as is”, “with all faults”, and without warranty, and Microsoft may cease providing support at any time, without notice; (iii) Microsoft has no obligation to hold, export, or return any Customer Data in relation to any Previews; (iv) Participant may use Previews for testing and evaluation purposes only; (v) Participant may not use Previews to access or process any “live” or production Customer Data, or Personal Data or other data that is subject to legal or regulatory compliance requirements; (vi) Microsoft may choose not to make a Preview generally commercially available. Previews are subject to reduced or different security, compliance and privacy commitments. Any data provided to Microsoft through Customer’s use of Previews may be transferred, stored, and processed pursuant to Section 2 (e) and 2(f).
4. Acceptable use. Participant will not: (i) use Previews (A) in a way prohibited by law, regulation, or government order or decree; (B) to violate others’ rights; (C) to try to gain unauthorized access to or disrupt any service, device, account, or network; (D) to distribute unsolicited commercial email or malware; or (E) in a way that could harm the Previews or impair anyone else’s use of them; (ii) reverse engineer, decompile, disassemble, or work around any technical limits in any Previews. Participant will respond to any third-party claims regarding its use of Previews or Customer Data (e.g., under the DMCA), and will comply with them as necessary to comply with laws; and (iii) if you offer software or a service competitive to a Preview you agree to waive any restrictions on competitive use and benchmark testing in the terms governing your competitive software or service. If you do not intend to waive such restrictions in your terms of use, you are not allowed to use the Preview. You may not use Previews or any part thereof to create a competing software or service.
5. Customer Data. The applicable MLA terms (which may be incorporated in the MLA by reference) pertaining to collection, use, and location of Customer Data (as such terms are modified in the MLA to apply to previews) will apply to collection, use, and location of Customer Data under this Agreement. The accuracy and performance of the Previews improve by having had access to large volumes of data. Microsoft will solely own any enhancements or improvements to the Previews arising from access to and use of Customer Data. Microsoft may also use information derived from Customer Data if such use does not include Customer Data and no Customer Data can be reverse engineered from such use.
6. Data Transfers. Customer Data and Personal Data that Microsoft processes on Customer’s behalf may be transferred to, and stored and processed in, the United States or any other country in which Microsoft or its sub processors operate. Customer appoints Microsoft to perform any such transfer of Customer Data and Personal Data to any such country and to store and process Customer Data and Personal Data to provide the Preview. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Personal Data to a third country or an international organization will be subject to appropriate safeguards as described in Article 46 of the GDPR ((EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC) and such transfers and safeguards will be documented according to Article 30(2) of the GDPR. In addition, Microsoft is certified to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks and the commitments they entail. Microsoft agrees to notify Customer if it makes a determination that it can no longer meet its obligation to provide the same level of protection as is required by the Privacy Shield principles.
7. Software. If a Preview includes any software, Participant may install and use it on its devices only with (and for so long as Participant has the right to use) such Preview under this Agreement. Participant will comply with the Preview Terms and any additional terms that may accompany such software. Participant must uninstall any such software when its right to use the applicable Preview ends (and Microsoft may also disable it at that time).
8. Updates. Microsoft may (but is not obligated to) provide updated versions of Previews, including by downloading updated software to Participant’s devices. Any such update may add, remove, or change features of the Preview. Participant will install (if applicable) and will use only such updated versions after Microsoft provides such updates.
9. Third party sites. Any links to third-party websites included in any Previews are provided for convenience only, and Microsoft is not responsible for the content of any such sites.
10. Non-Microsoft software. If Participant installs or uses any non-Microsoft software with any Previews, Participant may not do so in a way that would subject Microsoft intellectual property rights or technology to obligations beyond those in this Agreement. Microsoft will not run or copy such non-Microsoft software outside of its relationship with Participant.
11. Communications from Microsoft. By participating in the Program, Participant acknowledges and agrees that Microsoft may send transactional emails necessary for your participation in the Program.

3. Confidentiality.
1. Existing NDA. The information shared under this Agreement (except Feedback) is Confidential Information (defined in the NDA) subject to the Microsoft non-disclosure agreement, if any, between the parties (“NDA”). If the parties do not have an NDA that is in effect, then Sections 3(b) – (c) will apply.
2. Definition. “Confidential Information” means non-public information, know-how, or trade secrets in any form that are designated confidential or that a reasonable person knows or reasonably should know to be confidential. Confidential Information does not include any information, however designated, that: (i) is or becomes publicly available without a breach of this Agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential; (iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; (iv) is independently developed; or (v) is Feedback.
3. Use. Neither party will disclose the other’s Confidential Information to a third party for five years. Each party will: (i) use such information only for purposes of this business relationship; and (ii) take reasonable steps to protect the other’s Confidential Information. Each party may disclose the other’s Confidential Information to its affiliates, employees, and contractors only on a need-to-know basis, subject to this Section 3. In addition, Confidential Information may also be disclosed as necessary to comply with a judicial or other governmental order, if receiving party either gives reasonable notice of such disclosure to allow disclosing party a reasonable opportunity to seek a protective order or equivalent; or obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law, or otherwise as may be required by law.
4. Publicity. In connection with a Preview, Microsoft may create documentation, films, photographs, referrals, quotations, case studies, or other recordings or materials (“Publicity Materials”).
1. Microsoft Rights. Participant grants Microsoft the non-exclusive right to: (i) use Participant’s name, trademarks and service marks, and logos (“Marks”) in such Publicity Materials; (ii) interview and film, photograph, and record its employees and business operations at mutually agreed times and locations; and (iii) use Participant’s or its employees’ names, voices, statements, and likenesses (“Name and Likeness”) as embodied in the Publicity Materials for advertising, marketing, promotional, editorial, and public relations purposes in relation to Previews, in any and all media and formats. Participant will obtain (and represents and warrants that it has obtained) all releases and clearances necessary to grant all rights required under this Section 4.
2. Approvals. Participant will have the right to approve, before Microsoft’s first use, any Publicity Materials that include Marks or Name and Likeness. Participant will promptly review and either approve or disapprove them (such approval not to be unreasonably withheld) within 5 business days of receipt. Failure to respond within such 5-day period will be deemed approval. Participant is solely responsible for bringing to Microsoft’s attention any factual errors or removing Participant’s Confidential Information from Publicity Materials.
3. Participant’s Rights. Participant will have the right to publish, use, reference, and display the final, approved Publicity Materials, in whole or through unedited excerpts, in all forms of media now or hereafter known, and to sublicense the foregoing rights to third parties. Participant agrees that the content of the Publicity Materials will not be altered without prior written consent from Microsoft. Participant agrees to stop distributing, publicly referencing, and displaying the Publicity Materials at any time with 90 days written request from Microsoft.
5. Government participation. If Participant is, or is an agency of, a government:
1. any Preview, technology or services provided to Participant are solely for governmental use and not for use or benefit of any individual government employee;
2. Microsoft intends that these Previews, technologies and services and associated terms of this Agreement be in compliance with applicable laws and regulations with respect to gratuitous services;
3. to the extent there are legal restrictions on Participant’s ability to participate in publicity or related activities, Microsoft and Participant will negotiate in good faith an amendment to address those restrictions; and
4. any Microsoft Previews, technology or services made available to Participant, or to which Participant is given access, under or in relation to this Agreement constitute Microsoft trade secret information exempt from disclosure to the maximum extent permitted under any applicable public records law.
6. FastTrack Program. By participating in the FastTrack Program, you must agree to the terms of the Professional Services section of the Microsoft Online Services Terms. If you opt out of participating in a program your employer or other entity you represent shall remain effective in the applicable program.
7. Representations and warranties.
1. Mutual. Each party represents and warrants to the other that: (i) it has all necessary rights, title, and authority to enter into and perform under this Agreement; (ii) its performance under this Agreement will not breach any agreement with a third party; and (iii) it will comply with any and all laws, rules, and regulations applicable to its performance under this Agreement.
2. Disclaimer. Except as otherwise expressly provided in this Agreement and to the extent applicable law permits, Microsoft: (i) provides the Program, Program Materials and all Previews “as-is”; (ii) provides no warranties (express, implied, statutory, or otherwise), including of merchantability or fitness for a particular purpose; and (iii) does not guarantee that the Program, Program Materials or any Previews will be uninterrupted, available, or error-free. Without limiting the above, Microsoft is not liable for any damage to hardware or software or loss of files or data related to use of Previews.
8. Limited liability. Except as otherwise described in this 8, each party’s exclusive remedy for claims under this Agreement is to terminate this Agreement or Participant’s participation in the applicable Preview. Each party’s maximum, aggregate, liability arising out of or related to this Agreement (including related to access or use of the Program Materials or participation in or use of any Preview) to you and anyone else, to the maximum extent allowed by law, is limited to direct damages incurred in reasonable reliance, in an amount not to exceed $500. Neither party will be liable for any other damages, including indirect, special, incidental, consequential, punitive, or exemplary damages, or for lost revenue, lost profits, lost business information, or business interruption, related to this Agreement, even if the at-fault party knew or should have known such damages were possible. This 8 does not apply to claims arising from any breach of confidentiality obligations under 3 or to obligations under (or breach of) 10.
9. Term and termination.
1. Term; termination rights. The term of this Agreement (“Term”) begins on the Effective Date and continues until terminated or until Microsoft terminates all Previews, whichever occurs first. Either party may terminate this Agreement on 30 days’ notice for any or no reason. Microsoft may also terminate or suspend this Agreement, in whole or part, immediately on notice if Participant breaches this Agreement and the breach is one that cannot be cured. Moreover, this Agreement will terminate automatically following notice to Participant of breach if Participant fails to cure the breach within five days of such notice. This Agreement also terminates automatically and without notice with respect to any Preview when it becomes generally publicly available, other than as a pre-release or “beta” product or service, or Microsoft ceases to offer the Preview.
2. Effect of Termination. On termination or expiration of this Agreement, Participant must stop using the Preview. Sections 1, 3, 4, 7, 8, 10, and 11 will survive such expiration or termination.
10. Indemnification. Participant will defend Microsoft against any claims made by an unaffiliated third party that (i) any non-Microsoft Products, Marks, or services you provide, directly or indirectly, in using a Preview infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; (ii) arise from violation of Preview Terms or any other policy that governs Participant’s use of a Preview; or (iii) arise from use of any Preview in a “live” or production environment.
11. General.
1. Non-Exclusivity. This Agreement is nonexclusive. It does not restrict either party from entering into the same or similar arrangement with any third party.
2. Notices. Participant consents to receive notices, and any information the law requires Microsoft to provide, by email to the address Participant provided to Microsoft to join the Program (“Participant’s Email”). Notices emailed to Participant will be deemed given and received when sent to Participant’s Email. All notices to Microsoft related to this Agreement: (i) must be in writing (excluding email), sent to Microsoft Corporation; Attn: Microsoft Dynamics and Power Platform Customer Programs; One Microsoft Way, Redmond, WA 98052; (ii) will be deemed given when actually received by Microsoft; and (iii) and a copy sent via facsimile to: Microsoft Corporation; Attn: Corporate, External, and Legal Affairs for the Microsoft Dynamics and Power Platform Customer Programs at (425) 936-7329.
3. Jurisdiction; law. The laws of Washington State, excluding conflicts of law provisions, govern this Agreement. If federal jurisdiction exists, then each party consents to exclusive jurisdiction and venue in the federal courts in King County, Washington. If no federal jurisdiction exists, then each party consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington. If a party employs attorneys to enforce any rights relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs, and other expenses.
4. Force majeure. A party will not be liable for failure to perform under this Agreement to the extent that failure is due to a cause beyond that party’s reasonable control, including natural disaster, war, civil disturbance, or government action.
5. Limitation on claims. Any claim related to this Agreement, the Program, or any Preview is barred unless brought within one year from the date it could first be filed. This limitation applies to each party’s successors and any permitted assigns.
6. Miscellaneous. Participant may not assign or transfer this Agreement without Microsoft’s prior, written consent. Each party is an independent contractor, and this Agreement does not create any other relationship. If any court of competent jurisdiction determines that any part of this Agreement is illegal, invalid, or unenforceable, the rest of the Agreement will remain in full force and effect. Only written waivers are effective. This Agreement (including any Preview Terms and any NDA, which are incorporated in this Agreement by this reference) is the parties’ entire agreement regarding (and replaces all prior agreements, communications, and representations between the parties on) this subject. This Agreement supersedes any other Microsoft terms or agreements that may be linked from any Previews. If any Preview Terms conflict with this document, the Preview Terms will control, but only for the particular Preview.
7. Modification. Microsoft may modify this Agreement, solely with prospective effect. By continuing to access or use the Program Materials, or any Preview after notice of such modification, Participant is deemed to have agreed to such modified Agreement. If Participant does not agree, it must immediately terminate this Agreement under Section 9(a).

Well this is embarassing...