Microsoft Live@edu Terms of Use (Organizational)


This Microsoft Live@edu Terms of Use (“Agreement”) is entered into between your educational institution (“Institution”) and Microsoft Corporation (“Microsoft”) as of the date Institution executes this Agreement and becomes effective as of the date Institution is provisioned or migrated to the Outlook Live Organizational service plan (“Effective Date”). This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications between the parties with respect to the subject matter hereof and the Microsoft Services. In order to use the Live@edu Core Service under this Agreement, Institution must be recognized by Microsoft, in its sole discretion, as a legitimate academic enterprise focused primarily on providing or administering educational services to End Users.
  1. Definitions. In this Agreement the following definitions apply:
    1. "Advertisement" means any advertisement for third party products or services including, without limitation, graphic display advertisement, e.g. banner ad, text only, video or audio advertisement.
    2. "Alumni" means a graduate of the Institution or a Student who has not actively enrolled and participated in a class during the prior year.
    3. "Credentials" means any mechanism, such as a certificate, user ID, or password, that Microsoft makes available to Institution for the purpose of enabling Institution to add, modify or delete End Users’ Windows Live IDs and any associated attributes under this Agreement.
    4. "End User" means any Alumni, Student, applicant, faculty, staff member, volunteer, staff retiree, or other individual associated with Institution who is authorized by Institution to access and use the Live@edu Core Service and for whom the Institution has established a Windows Live ID under this Agreement.
    5. "ILM" means Microsoft’s Identity Life Cycle Manager software.
    6. "Live@edu Core Service" means the Windows Live IDs provisioned by Institution and those services set forth on Exhibit A to this Agreement, which Exhibit may be amended from time to time at the sole discretion of Microsoft, pursuant to Section 10.e below.
    7. "Major Incident" means a problem with a system, network, server, or critical application under Microsoft’s sole and direct control that prevents or unreasonably delays a majority of End Users from using the Live@edu Core Service for more than fifteen (15) continuous minutes.
    8. "Microsoft Consumer Services" means any Internet-based or client-based service or web site that Microsoft generally makes available to consumers without a fee that is branded or partially branded “Windows Live”, “MSN”, “Office Live” or successor branding and that requires authentication through the Windows Live ID Directory. The Microsoft Consumer Services do not include the Live@edu Core Service.
    9. "Microsoft Services" means collectively, the Live@edu Core Service and the Microsoft Consumer Services.
    10. "Organizational service plan" means the service plan under which the Live@edu Core Services are provided to Institution pursuant to the terms and subject to the conditions of this Agreement.
    11. "Password" means the password associated with an End User’s Windows Live ID.
    12. "Student" means any individual who is an enrolled student of the Institution.
    13. "TOU" means the terms of use Microsoft establishes with End Users governing the use of Microsoft Consumer Services, which Microsoft may update from time to time.
    14. "Institution Domain" means one or more top-level domain name(s) owned and managed by the Institution.
    15. "Windows Live ID" means the set of credentials, as well as the associated account profile, that an End User may use to access Microsoft Services by authenticating through the Windows Live ID Directory service.
    16. "Windows Live ID Directory" means the Windows Live ID single sign-in authentication and identification service (formerly known as Passport), including any updates or future versions, which, among other things, is used to authenticate users of the Microsoft Services.

  2. Microsoft Services Deployment.
    1. E-Mail Service
      1. Description. Microsoft will provide to Institution for the benefit of its End Users a managed e-mail service using the Institution Domain comprising the then-current version of the free web-based e-mail service that is hosted, managed, and marketed by Microsoft and that is branded “Outlook Live” (or successor branding) and is provided by Microsoft to Institution under the Live@edu Organizational service plan (the “E-Mail Service”).
      2. Spam and Malware. Institution acknowledges and agrees that Microsoft may filter the E-Mail Service for spam or other malware.
      3. Suspension/Termination of E-mail Accounts. Institution and Microsoft acknowledge and agree that either party may suspend or discontinue the provision of the Live@edu Core Service to any End User, except that Microsoft may do so only if it reasonably believes the End User has engaged in any of the following:
        1. engaged in, facilitated or furthered unlawful conduct;
        2. used the Microsoft Services in a way that harms Microsoft or Microsoft’s advertisers, affiliates, resellers, distributors and/or vendors, or any customer of Microsoft or Microsoft’s advertisers, affiliates, resellers, distributors and/or vendors;
        3. used any portion of the Microsoft Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages ("spam");
        4. used any automated process or service to access and/or use the Microsoft Services (such as a BOT, a spider, periodic caching of information stored by Microsoft, or "meta-searching;
        5. used any unauthorized means to modify or reroute, or attempt to modify or reroute, the Microsoft Services;
        6. damaged, disabled, overburdened, or impaired the Microsoft Services (or the network(s) connected to the Microsoft Services) or interfere with anyone's use and enjoyment of the Microsoft Services; or
        7. resold or redistributed the Microsoft Services, or any part of the Microsoft Services.
    2. Deployment Tools. Microsoft will make available to Institution at no cost at least two tools to enable provisioning and managing Windows Live IDs for End Users under this Agreement: (a) a software development kit (“SDK”) and (b) a management agent (“WLID Management Agent”). Either tool (“Deployment Tool”) can be used independently of the other to provision and manage End User accounts, although the WLID Management Agent requires ILM, which Institution may purchase separately at its option, in order to provision and manage accounts. The SDK does not require ILM.
    3. Advertising and Special Caveat for Students.
      1. Between the parties, Microsoft will have the sole and exclusive right to sell and serve advertising on the Microsoft Services. Such advertising will be developed, sold and served in Microsoft’s discretion. Without limiting the generality of the foregoing, Institution acknowledges and agrees that Microsoft may display advertising on the Microsoft Services that is targeted to the Institution Domain, in whole or in part.
      2. Notwithstanding Section 2.c.i, Microsoft agrees not to display Advertisements that promote third party products or services on the web interface of the E-Mail Service for Students; provided, however, that Microsoft reserves the right to display information pertaining to Microsoft products and services in the web interface of the E-mail Service for Students. Such information may include, but is not limited to, tips on using Microsoft Services. Institution acknowledges and agrees that Microsoft may display Advertisements on the web interface of the E-Mail Service for all End Users that are not Students.
      3. Institution agrees that Microsoft shall have that right to deliver e-mail and other electronic correspondence to End Users regarding the Live@edu Core Services and other Microsoft Consumer Services as permitted by applicable law and that Microsoft may seek End Users’ permission to send e-mail correspondence in accordance with applicable law.
    1. Terms of Use.
      1. Live@edu Core Service. The Live@edu Core Service is offered to institution for Institution’s own use and that of a limited number of End Users associated with the Institution. Institution shall not resell the Live@edu Core Service or otherwise offer the Live@edu Core Service to the public. Institution understands and accepts that this Agreement constitutes the sole Agreement between Microsoft and Institution with respect to the Live@edu Core Service. Institution acknowledges and agrees that each End User’s use of the Live@edu Core Service is pursuant to the terms and subject to the terms, conditions, privacy policies, and acceptable user polices between End User and Institution; provided, however, that Institution shall not attempt to authorize or permit any activities in conflict with the terms and conditions of this Agreement. To the extent that any personal data subject to the law of a member state of the European Economic Area is processed by the Live@edu Core Services, Microsoft shall act solely as Institution’s data processor (as that term is defined in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data).
      2. Microsoft Consumer Services. End Users who use the Microsoft Consumer Services shall be subject to the applicable TOU, including Microsoft’s privacy policy. Institution acknowledges and agrees that each End User will be required to accept the TOU for such Microsoft Consumer Services before such End User may use such Microsoft Consumer Services and that with respect to such Microsoft Consumer Services the TOU shall control.
      3. Parental Consent. Institution, and not Microsoft, shall obtain any parental consent for each End User’s use of the Live@edu Core Service before provisioning a Windows Live ID as may be required by applicable law. If such parental consent is retracted, then Institution shall ensure that personal information is not collected from the affected End User(s) through the use of Windows Live ID except as permitted by applicable law.
      4. FERPA. Microsoft and Institution acknowledge and understand that Institution may disclose to Microsoft personally identifiable information from education records, subject to the Family Educational Rights Privacy Act of 1974, as amended (20 U.S.C. § 1232g) and its implementing regulations promulgated by the United States Department of Education (“FERPA”), as may be necessary for Microsoft to provide services under this Agreement and hereby agree to the terms and conditions set forth on Exhibit B to this Agreement with respect to such information and Microsoft and Institution’s respective obligations under FERPA.
    2. Support.
      1. Microsoft will provide to End Users the same level of customer support with respect to the Microsoft Services as Microsoft then-currently provides to other commercial end users of each such Microsoft Consumer Services via the website located at http://support.live.com or a subsequent URL as determined by Microsoft. Notwithstanding the foregoing, Institution acknowledges and agrees that it will provide front-line support to its End Users for the E-mail Service.
      2. Microsoft will provide a free support offering to Institution, which Microsoft reserves the right to change from time to time. In addition to the free support offering, Microsoft reserves right to add a premium paid support offering for Institution at a future date.
      3. In the event of a Major Incident, Microsoft will promptly initiate and continue reasonable actions to limit the duration and scope of any Major Incident and will use commercially reasonable efforts to restore access to and functionality of the Live@edu Core Service as quickly as is reasonably possible after becoming aware of a Major Incident.

  3. Institution’s Obligations.
    1. Differentiating Between Student and Alumni E-mail Accounts. Institution will periodically and no less frequently than semi-annually update the attributes of each Windows Live ID it has created under this Agreement to accurately indicate which Windows Live IDs are associated with Students, Faculty, Staff, Alumni and others.
    2. Institution Domain(s). Institution is solely responsible to ensure that throughout the Term, Institution has all rights in and to the Institution Domain(s) necessary to allow Institution to have the exclusive right to use the Institution Domain(s) in connection with the Live@edu Core Service as provided in this Agreement. Institution will be responsible for any claim by any third party claiming any right in or to, or any infringement of any right by, the Institution Domain(s).
    3. Security of Passwords. Each party will protect End User Passwords as it protects its own highly confidential information. In addition to the security requirements set forth in the Agreement, Institution will comply with the following policy regarding Institution’s access to Passwords:
      1. Passwords may not be used, copied, reproduced, cached, stored or disclosed to anyone other than the verified account holder. Institution agrees to destroy all Passwords after such communication.
      2. To prohibit unauthorized access to Passwords, access to applicable support tools should be limited to those Institution employees directly responsible for providing End User support for the Live@edu Core Service and/or Passwords in accordance with the Agreement.
    4. Updates. Institution will remain current with and promptly install any updates provided by Microsoft in relation to this Agreement including without limitation all applicable security patches, hot fixes, encryption key updates, Credentials updates (collectively, “Service-Related Updates”) as directed by Microsoft. Institution acknowledges and agrees that it may not be able to continue providing End Users with access to the Live@edu Core Service if it does not promptly install Service-Related Updates from Microsoft.
    5. Suitability and Compliance. Institution is solely responsible for determining the suitability of the Live@edu Core Service for use for Institution’s purposes, and for compliance with any legal, regulatory and/or other requirements applicable to Institution. MICROSOFT AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY OF THE LIVE@EDU CORE SERVICE FOR USE FOR INSTITUTION’S PURPOSES, OR THE LIVE@EDU CORE SERVICE’S COMPLIANCE WITH ANY LEGAL, REGULATORY AND/OR OTHER REQUIREMENTS APPLICABLE TO INSTITUTION, EXCEPT AS OTHERWISE PROVIDED HEREIN. Institution shall not extend any warranties or incur any obligations on behalf of Microsoft to End Users or any other third party.

  4. Privacy, security and adverse use.
    1. Independent collection of End User data. Except with respect to data provided to Microsoft for the purpose of provisioning the Live@edu Core Service, no End User personal information will be required to be provided by one party to the other under this Agreement. However, nothing in this Agreement restricts either party from collecting, saving and using any data such party independently collects directly from an End User in accordance with such party’s own privacy policy and applicable law. In addition, Microsoft may compile, use or disclose aggregate End User membership statistics derived from End User information with respect to a Microsoft Service so long as such disclosures do not personally identify individual End Users or disclose data from which the identity of an individual End User can be reasonably ascertained.
    2. Security. Institution will use any information associated with Windows Live IDs it makes available to End Users under this Agreement, including without limitation Passwords and Windows Live ID unique identifiers (“Information”), solely for the purpose of managing its authorized End User accounts as permitted in this Agreement. Disclosure of the Credentials or Information to an unauthorized individual could put the Microsoft Services at risk, including End User e-mail addresses, Passwords, and the content of End User e-mail within the E-Mail Service. Microsoft is not responsible for any loss that may incur as a result of any unauthorized use of the Microsoft Services. Institution shall take commercially reasonable security and other measures to protect the Information and Credentials from unauthorized access, use, disclosure, alteration and destruction. Such security measures will include authentication controls, physical controls or other means in accordance with Institution’s information security policy, which Institution agrees to provide Microsoft upon reasonable request. If Microsoft reasonably requests that Institution employ additional security procedures or requirements, then the parties shall negotiate the terms of such implementation in good faith. Institution will immediately report to Microsoft any actual breach of security under this Agreement involving Information, and the Parties shall mutually agree on appropriate steps to (i) immediately alleviate any continued threat to the privacy or security of Institution End Users; and (ii) prevent foreseeable future threats to the security or privacy of Microsoft, or Institution End Users. In addition to meeting all implementation requirements contained in the applicable documentation, Institution shall implement security measures in connection with its use of the Live@edu Core Service that meet or exceed the following standards:
      1. Access to servers used by Institution in connection with its deployment of the Live@edu Core Service shall be protected via commercially reasonable access control mechanisms and will be limited to a designated set of Institution employees or contractors owing confidentiality obligations to Institution;
      2. An encryption key or other credentials will be installed on servers used by Institution in connection with its deployment of the Live@edu Core Service and then promptly destroyed or locked down in an area of restricted access in a manner reasonably calculated to prevent disclosure of the encryption key other than as necessary for continued deployment of the Live@edu Core Service pursuant to this Agreement;
      3. Institution will use commercially reasonable cryptographic protocols to protect information sent over the Internet; and
      4. Institution will remain current with and install all vendor service-related updates, including without limitation security patches, protocol updates, and hot fixes.
    3. No Illegal or Adverse Use. Institution will not provide the Live@edu Core Service to End Users in connection with Institution’s transmission, sale, license or delivery of any infringing, defamatory or illegal product or service. Institution will not use the Live@edu Core Service or offer it to End Users in any manner that threatens the integrity, performance or availability of the Microsoft Services.
    4. Disclosure of Personal Information. In order to operate and provide the Microsoft Services, Microsoft may collect personal information about End Users. Microsoft may access or disclose Institution or End User information, including the content of End User communications, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Microsoft or Microsoft customers, including the enforcement of Microsoft’s agreements or policies governing the use of the Microsoft Services; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Microsoft employees, customers or the public.
    5. Security Measures. Microsoft retains the right to block or otherwise prevent delivery of any type of e-mail or other communication to or from the Microsoft Services as part of Microsoft’s efforts to protect its services, protect Microsoft’s customers or stop Institution (either itself or through its End Users) from breaching this Agreement. The technology or other means Microsoft uses may hinder or break Institution’s or End Users’ use of the Microsoft Services.
    6. Collection of Service Data. In order to provide the Microsoft Services, Microsoft may collect certain information about service performance, user machines and service use. Microsoft may automatically upload this information from Institution or End User machines.
    7. International Transfer of Personal Information. Personal information collected through the Microsoft Services may be stored and processed in the United States or any other country in which Microsoft or its affiliates, subsidiaries or agents maintain facilities. Institution consents, and shall obtain the consent of all End Users, to any such transfer of information outside of the country in which such information is collected. Microsoft abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of data from the European Union.

  5. Ownership. Microsoft and its licensors will retain all right, title, and interest in and to the Microsoft Services the Deployment Tools, and all other content, documentation, technology, software, materials and services Microsoft owns and makes available to Institution or any End User by Microsoft to create, manage, modify, store, delete, or authenticate End Users’ Windows Live IDs and/or access to Microsoft Consumer Services (collectively “Microsoft Tools”) pursuant to this Agreement, including, but not limited to, any Microsoft Tools made available to Institution via web site currently located at the URL http://domains.live.com, or any successor URL. Institution, its licensors, End Users or third parties will retain all right, title and interest in and to all content, technology, materials and services delivered or forwarded to Microsoft by Institution under this Agreement.

  6. Trademarks. If Institution elects to use the branding service offered by Microsoft, then Institution grants to Microsoft a worldwide, royalty free license to use the trademarks and logos Institution provides to Microsoft (“Institution Marks”) for the purpose of providing Institution with a Institution co-branded Live@edu Core Service and, if Institution elects, other co-branded Microsoft Consumer Services as such co-branding is made available by Microsoft. Institution warrants that the Institution Marks provided are original and do not infringe any copyright, trademark, or other proprietary right held by any third party in any country/region. Institution also warrants that it is not aware of any claims regarding the Institution Marks in any country.

    Institutions agrees to indemnify Microsoft for third party claims that result in any breach of Institution Marks warranties and claims that Microsoft’s use of the Institution Marks violates any third party rights in any country/region. Microsoft has the right to suspend or cancel Institution’s use of the branding service if Institution violates any part of this section.

  7. Press Releases. Neither party will issue a press release pertaining to this Agreement without the other party’s prior written approval.

  8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL INFORMATION, MATERIALS, SOFTWARE OR SERVICES ARE PROVIDED BY MICROSOFT AND ITS SUPPLIERS (COLLECTIVELY, “MICROSOFT DELIVERABLES”) ON AN “AS IS” BASIS AND MICROSOFT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH RESPECT TO THE MICROSOFT DELIVERABLES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR RESULTS TO BE OBTAINED BY INSTITUTION AND END USERS IN CONNECTION WITH THE USE OF THE LIVE@EDU CORE SERVICE.

  9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE ANY MICROSOFT SERVICE, EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON SHALL BE LIMITED TO TEN THOUSAND DOLLARS.

  10. Term, Termination and Amendments.
    1. Term. Unless terminated earlier under Section 10.b, this Agreement is effective as of the Effective Date and expires two (2) years after the Effective Date; provided that the Term automatically renews for additional one (1) year periods unless either party provides written notice of termination to the other party at least thirty (30) days prior to the end of the then-current term.
    2. Termination for Convenience. Institution may terminate this Agreement for any reason upon thirty (30) days written notice to Microsoft.
    3. Termination for Cause. Either party may immediately terminate or suspend this Agreement if the other party is in material breach of any material warranty, representation, term, condition or covenant of this Agreement and fails to cure that breach within thirty (30) days after written notice.
    4. Survival, Transition Period. In the event of termination or expiration of the Agreement for any reason, Sections 5 through 12 and applicable nondisclosure provisions will survive and Institution shall cease using the Live@edu Core Service, and return to Microsoft all full or partial copies of software, documentation and materials provided by Microsoft under this Agreement for the Live@edu Core Service, except, however, the Institution may retain one copy for archival purposes. Following expiration or termination of this Agreement, Microsoft may offer End Users an e-mail account with one of Microsoft’s then-current consumer e-mail services (i.e., Hotmail or Outlook Live) pursuant to Microsoft’s standard terms and conditions for such Microsoft Consumer Service; provided, however, that Microsoft may not use any Institution domain name or address in administering such accounts, after such accounts have been migrated by Microsoft to a consumer e-mail service as contemplated in this Section 10.d.
    5. Amendments. Microsoft reserves the right to make changes to this Agreement from time to time in Microsoft’s sole discretion; provided, however, at least 30 days before any material change to this Agreement takes place, Microsoft will give Institution notice of such changes. If Institution does not agree to such changes then Microsoft may terminate this Agreement. If Institution continues to use the Live@edu Core Service after such changes to this Agreement have been have been implemented, Institution’s use of the Live@edu Core Service shall continue under the revised version of this Agreement.

  11. Confidentiality.
    1. Confidential information. Confidential information means information marked or otherwise identified in writing by a party as proprietary or confidential or that, under the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential. It includes non-public information regarding either party’s products, features, marketing, plans and promotions. All beta releases are confidential unless excepted below. Confidential information does not include information that: (i) the recipient developed independently; (ii) the recipient knew before receiving it; or (iii) is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation of confidentiality.
    2. Use of confidential information. For a period of five (5) years after disclosure, neither party will use the other’s confidential information without the other’s written consent except in furtherance of this business relationship or disclose the other’s confidential information except (i) to obtain advice from legal or financial consultants, or (ii) if required by law, in which case the disclosing party will use its best efforts to give the other party notice of the requirement so the disclosure can be contested. Each party will take reasonable precautions to safeguard the other’s confidential information. Such precautions will be at least as great as those the party takes to protect its own confidential information of like nature. Each party will disclose the other’s confidential information to its employees or consultants only on a need-to-know basis and subject to the confidentiality obligations imposed here. When confidential information is no longer necessary to perform any obligation under this agreement, each party will return it to the other or destroy it at the other’s request.
    3. Feedback. Institution may provide to Microsoft suggestions, comments or other feedback with respect to Microsoft’s confidential information or the Microsoft Services. Feedback is voluntary and Microsoft is not required to hold it in confidence. Feedback may be used by Microsoft for any purpose without obligation of any kind.
    4. Cooperation in the event of disclosure. Each party will immediately notify the other upon discovery of any unauthorized use or disclosure of confidential information and will cooperate in any reasonable way to help the other regain possession of the confidential information and prevent further unauthorized use.

  12. Miscellaneous.
    1. Not an Offer. This Agreement does not constitute an offer by Microsoft and it will not be effective until accepted by an authorized representative of each party.
    2. Representations and Warranties. Each party represents and warrants as follows: (i) it has full power and authority to enter into this Agreement and to carry out the provisions hereof, (ii) it is duly authorized to accept this Agreement and to perform its obligations hereunder, (iii) this Agreement is a legal and valid obligation binding upon it and enforceable according to its terms, and (iv) the acceptance and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound. Institution further represents and warrants that it has obtained all legal permissions from consents on behalf of parents or guardians of End Users as set forth in Section 2.d.iii for such End User to use the Microsoft Services as contemplated by this Agreement. Such permission to participate consent shall specifically authorize Microsoft, as contemplated by this Agreement, to provide End Users with access to the Live@edu Core Service; to collect, use and disclose personal information from End Users; and to receive and send notices and marketing materials to End Users regarding the Microsoft Services.
    3. Assignment. This Agreement may not be assigned by either party without the written consent of the other party, except that Microsoft may assign this Agreement to an entity owned or controlled by Microsoft. For purposes of this Section, the term “assignment” includes any change in control transaction, such as a merger or acquisition of substantially all the shares or assets of a party to this Agreement. An assignment will not relieve the assigning party of its obligations under this Agreement.
    4. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the Agreement to give effect to the stricken clause to the maximum extent possible.
    5. Waiver. No waiver of any breach of this Agreement will be a waiver of any other breach, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
    6. Force Majeure. To the extent that either party’s performance is prevented or delayed, either totally or in part, for reasons beyond that party’s control, then that party will not be liable, so long as it resumes performance as soon as practicable after the reason preventing or delaying performance no longer exists.
    7. Applicable Law and Jurisdiction. If Institution is organized or formed in the United States or Japan, this Agreement will be construed and controlled by the laws of the jurisdiction in which Institution is organized or formed. Otherwise, this Agreement will be construed and controlled by the laws of the State of Washington, exclusive of its choice of law rules. Furthermore, if the Institution is organized or formed outside of the United States, or Japan, Institution i) irrevocably consents to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal subject matter jurisdiction exists, in which case Institution consents to exclusive jurisdiction and venue in the Superior Court of King County, Washington; ii) Institution waives all defenses of lack of personal jurisdiction and forum nonconveniens. Process may be served on either party in the manner authorized by applicable law or court rule.
    8. Notices. Notices concerning this Agreement must be sent by post, express courier, facsimile or e-mail to the signatories or in the case of Institution, Institution’s IT administrator currently on record with Microsoft. Notices will be deemed delivered on the date shown on the postal return receipt or on the courier, facsimile or e-mail confirmation of delivery.


EXHIBIT A

LIVE@EDU CORE SERVICE:

The E-mail Service

EXHIBIT B

FAMILY EDUCATIONAL RIGHTS PRIVACY ACT (FERPA)
This Exhibit sets forth the terms under which Institution shall provide Microsoft Corporation (“Microsoft”) information subject to the Family Educational Rights Privacy Act of 1974, as amended (20 U.S.C. § 1232g) and its implementing regulations promulgated by the United States Department of Education (“FERPA”) in connection with services to be provided under the Agreement.
  1. Definitions:
    1. “Directory information” means information contained in education records that would not generally be considered harmful or an invasion of privacy if disclosed, including not limited to the student’s name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status; dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors and awards received; and the most recent educational agency or institution attended. Directory Information does not include (a) a student’s social security number, or any other personal identifier that can be used to gain access to education records without an additional factor to authenticate the user’s identity, such as a personal identification number, password, or other factor known or possessed only by the authorized user, or (b) any other information that would otherwise be directory information but that Institution has not designated in accordance with FERPA’s requirements as directory information. A complete list of information covered by subsection (b) above is attached to this Addendum as Annex 1. Directory information also does not include any information that is excluded due to the student’s refusal of such designation under FERPA for which Institution notifies Microsoft under Section 5 below.
    2. “Disclose” or “disclosure” means the act of permitting access to, or the release, transfer, or other communication of education records, or personally identifiable information from such education records, by any means, including oral, written, or electronic means, to any other party.
    3. “Education records” means records that are directly related to a student and are maintained by or for Institution, including such records in handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche form. Education records do not include records created or received by or for Institution after an individual is no longer a student in attendance and that are not directly related to the individual’s attendance as a student.
    4. “Personally identifiable information” means, for the purposes of this Exhibit only: the student’s name; the name of the student’s parent or other family members; the address of the student or student’s family; a personal identifier, such as the student’s social security number, student number, or biometric record; other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name; other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or information requested by a person whom Institution or a party acting for Institution reasonably believes knows the identity of the student to whom the requested information relates.
  2. Institution represents and warrants that it is in compliance with the requirements of FERPA related to the provision of personally identifiable information to Microsoft under the Agreement.
  3. Pursuant to FERPA regulations permitting an educational agency or institution to disclose, without the prior consent of a student (or, with respect to a student under 18 years of age and not in attendance at a postsecondary institution, a student’s parent), personally identifiable information from education records to a party to whom the agency or institution has outsourced institutional services or functions, Institution shall disclose to Microsoft such information from education records as may be necessary for Microsoft to provide services under the Agreement. Institution shall inform its students of its policy regarding such disclosure in its annual notification of FERPA rights. Institution shall provide an annual notification of FERPA rights in compliance with 34 C.F.R. § 99.7.
  4. Institution shall provide Microsoft, at Microsoft’s reasonable request, with copies of all policies and notifications distributed to students (or, with respect to students under 18 years of age and not in attendance at a postsecondary institution, distributed to students’ parents) regarding Institution’s outsourcing of institutional services and functions, and such other information as Microsoft may reasonably request in order for Microsoft to comply with its obligations under this Exhibit.
  5. Institution shall comply with FERPA’s requirements regarding the designation of such information as directory information and permitting students to refuse all or part of such designation. Institution shall at all times inform Microsoft in writing of any student who has refused all or part of any directory information designation.
  6. Microsoft shall not use or allow access to personally identifiable information from education records, other than directory information, except in connection with services to be provided under the Agreement or as Institution otherwise directs. Without limiting the foregoing:
    1. Microsoft may disclose personally identifiable information from education records in its possession in connection with an emergency if knowledge of the information is reasonably determined by Microsoft to be necessary to protect the health or safety of the student or other individuals. In making such determination, Microsoft shall take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individual.
    2. Upon receipt of a judicial order or lawfully issued subpoena requiring the disclosure of personally identifiable information from education records in its possession, Microsoft shall disclose such information in accordance with the order or subpoena; provided, that unless otherwise prohibited by applicable law, Microsoft shall first make a reasonable effort to notify the student (or, with respect to a student under 18 years of age and not in attendance at a postsecondary institution, the student’s parent) of the order or subpoena such that the affected individual may seek protective action before the disclosure occurs.

Annex 1
None.

Microsoft Live@edu Terms of Use (Organizational)