Last Updated: April 12, 2018
Thank you for your interest in developing for Mixer. This Mixer Developer Agreement ("Agreement") is a legally binding agreement. It describes the relationship between you or your company ("you," "your," or "Developer") and Microsoft Corporation ( "Microsoft," "we," "us," or "our") when you use software, SDKs, sample code, APIs and other development resources (collectively "Development Resources," as defined below) that Microsoft makes available to you in connection with the Mixer video streaming Service (as defined below). This Agreement is effective as of the date you register to be a Mixer Developer at https://aka.ms/mixerdevlab (or other location we designate), or by other means of acceptance provided by Microsoft ("Effective Date"). This Agreement supersedes, and terminates by mutual agreement, any prior developer agreement applicable to Mixer. By registering, you accept this Agreement, and you agree that you have read, understand, and agree to be bound by its terms. We may amend this Agreement at any time and in our sole discretion by updating this Agreement and posting the changes. We may change, suspend or discontinue all or any aspects of the Service at any time without prior notice. You are responsible for regularly reviewing this Agreement and any changes. Your continued use of the Service or the Development Resources after the posting of such changes constitutes your acceptance of and agreement to such changes. The Agreement includes any Exhibits and documents expressly referenced herein. Provider and Microsoft are each a "Party" and collectively the "Parties" to this Agreement.
1.1. "Affiliate"means any legal entity that either Party owns, that owns either Party, or that is under common control with a Party. Within this definition, "control" or "own" means possessing a 50% or greater interest in an entity or the right to direct the management of the entity.
1.2. "API"means any interface that transfers data or commands or otherwise between your Application and the Service.
1.3. "API Key"means a unique identifier provided to you by Microsoft as a means to authorize you or your Application to utilize any API or the Service.
1.4. "Application"means any software application, service, experience, program, or product integration that you develop utilizing the Development Resources, and/or make available or distribute for use in connection with the Service.
1.5. "Developer Account" means the account that Developer establishes at https://aka.ms/mixerdevlab (or other location designated by Microsoft) in order to register to access the Development Resources and develop Applications for the Service.
1.6. "Development Resources"means software, software development kits, sample code, APIs, documentation, or other materials that Microsoft makes available directly or at https://dev.mixer.com , https://github.com/mixer/ , or in connection with the Service for the purpose of developing Applications.
1.7. "End User" means an individual person using the Service.
1.8. "Microsoft Marks"means any Microsoft trademarks, service marks, trade names, logos, and indicia of origin provided by Microsoft to Developer for use in connection with Developer's Application and under the terms of this Agreement.
1.9. "Microsoft Policies"means all then-current policies and procedures of Microsoft related to the Service, including, without limitation, the TOS, and the Mixer Rules of User Conduct (currently posted at https://watchbeam.zendesk.com/hc/en-us/articles/115000922623-Rules-of-User-Conduct ), which as of the Effective Date have been made available to you, and which if not already part of this Agreement are hereby incorporated by reference. Microsoft may amend Microsoft Policies, or add additional policies, from time to time.
1.10. "Service"means Microsoft's interactive game video streaming and gaming community platform delivered on, from, or through https://mixer.com or related software applications, services, products, or data feeds.
1.11. "TOS"means the then-current Mixer Terms of Service (currently posted at https://mixer.com/about/tos or other location that Microsoft designates), which terms apply to Provider's use of the Service, to the extent they do not conflict with the terms in this Agreement. Microsoft may revise or update the TOS at any time, including, without limitation, transitioning to new terms such as the Microsoft Services Agreement (currently posted at https://www.microsoft.com/en-us/servicesagreement/default.aspx or such other location that Microsoft designates), in which case such new terms shall be understood to be the TOS for all purposes under this Agreement.
2. Microsoft Service Offering.At Microsoft's sole discretion, Microsoft, Microsoft Affiliates, and/or our partners, vendors and/or subcontractors will: (a) operate the Service; and (b) make Development Resources available in connection with the Service.
3. Developer Obligations.
3.1. General.Developer will: (a) register a Developer Account as provided in Section 3.2 below; and (b) comply with all Microsoft Policies and all applicable laws.
3.2. Registration.In order to access and use the Development Resources, and develop and distribute Applications, you must register with Microsoft by creating a Developer Account. All information you submit, and any response you give to questions asked (at any time) by Microsoft, must be truthful. You are responsible for providing, maintaining and keeping current all information you submit.
3.3. API Use.
3.3.1.Microsoft is not obligated to permit your use of the API. If it does, Microsoft will issue you an API Key. Microsoft may revoke your API Key, or your use of the API, without notice at any time for any reason, including without limitation any violation of this Agreement. You may not sell, lease, or transfer the API Key assigned to you by Microsoft. You agree to keep confidential any part of your API Key that must be secret to function as intended, and to use the same degree of care in keeping this information confidential that you use in keeping your own information confidential.
3.3.2.You will not attempt to circumvent the API, or in any way abuse, misuse, or interfere with the intended operation of the API. Microsoft may collect and use data regarding your use of the API, and use that data for any purpose. Microsoft may limit the number of API calls from an Application in a given period of time.
3.4. Third-Party Terms.Some of the Development Resources that we make available may be subject to additional or third-party terms and conditions. In these cases, you are solely responsible for accepting and complying with all applicable additional or third-party terms and conditions.
4. Other Developer Requirements and Policies
4.1. Mixer's Values.Mixer's goal is to bring streamers and viewers together around the world's fastest and only truly interactive streaming platform. Mixer's values are represented by experiences and features that help achieve this goal, and specifically that put community first, respect End Users' desires and preferences, and enhance community, interactivity and fun. All aspects of your Application and your development for the Service should aspire to the same goals and experiences.
4.2. Commercialization of Applications.Microsoft is open to various ways you may wish to commercialize your Application, provided that your Application, and the manner in which you commercialize it, are at all times consistent with Mixer's values and this Agreement.
4.3. Data Use.Much of the data accessible from the Service is public and free to End Users in order to help achieve Mixer's goals, and in a manner that is consistent with its values. Your use of data accessible from Mixer, whether on its own or in combination with other data accessible to you, must be at all times consistent with Mixer's values, Microsoft Policies, and this Agreement. In addition, you may not sell any data you collect from Mixer, or any business analytics or insights you derive from such data, without Microsoft's prior written approval. Microsoft will deem any attempt to sell such data without Microsoft's prior written approval as a conflict with Mixer's values. You agree to take reasonable measures to ensure the security of Mixer data in your possession.
4.4. Conflicts with Mixer's Values.If, in Microsoft's sole discretion, your Application, its commercialization, or your use of data you access from Mixer conflicts with Mixer's values, then Microsoft reserves the right to take any actions it may deem appropriate under the circumstances. This may include, but is not limited to: (a) contacting you to resolve concerns about your Application, the manner of its commercialization, your use of data, etc., in which case you agree to work with Microsoft in good faith to resolve these concerns, (b) revoking your API Key, or (c) terminating this Agreement as provided in Section 8. For the purpose of illustration only: if your Application includes display ads for products that, in Microsoft's discretion, are not appropriate for the Mixer community, then Microsoft may contact you to request that you remove such ads from your Application.
5. Intellectual Property.
5.1. Ownership.Intellectual property provided by one Party to the other Party in relation to this Agreement will remain the sole and exclusive property of the providing Party. Each of the Parties will take such action (including signature and assistance in preparation of documents or the giving of testimony) as may be requested by the providing Party to confirm such providing Party's rights in and ownership of any intellectual property. All goodwill, rights, and benefits in Microsoft Marks or Developer Marks arising from use under this Agreement will inure to Microsoft or Developer, respectively.
5.2. License to Feedback.Either Microsoft or Developer may voluntarily provide to the other suggestions, comments or feedback about the other Party's products or services (" Feedback "). Even if designated as confidential, the receiver of Feedback may use it for any purpose without obligation of any kind, except they may not disclose the source of Feedback to any third party without consent of the Party providing it.
5.3. Licenses By Microsoft.If a specific license accompanies a specific Development Resource, then that license applies to your use of that Development Resource. For any Development Resource that is not accompanied by a specific license, then on the condition that you comply in full with all Developer obligations and requirements in this Agreement, Microsoft grants you (a) a limited, revocable, nonexclusive, royalty free, non-transferable, non-sublicensable license to reproduce, modify, create derivative works from, distribute, and utilize the Development Resources for the sole purpose of developing, testing, and distributing your Application, and (b) a limited, revocable, nonexclusive, royalty free, non-transferable, non-sublicensable license to use any API for the sole purpose of developing, testing, distributing and executing your Application. Microsoft also grants you a limited, revocable, nonexclusive, royalty free, non-transferable, non-sublicensable license to reproduce, distribute and display the Microsoft Marks, subject to any usage or brand guidelines we provide. Any right or license not expressly granted by this Agreement is hereby reserved.
5.4. Licenses By Developer.Developer grants to Microsoft a nonexclusive, royalty free, transferable, perpetual, sublicensable license to publicly display and utilize your Application in connection with the Service. To the extent your Application may require you to deliver software to Microsoft for Microsoft to host or execute in order for your Application to function in connection with the Service, Developer grants to Microsoft a nonexclusive, royalty free, transferable, perpetual, sublicensable license to reproduce, modify, create derivative works from, distribute, and publicly display your Application in connection with the Service. Developer also grants to Microsoft a nonexclusive, royalty free, transferable, perpetual, sublicensable license to reproduce, distribute and publicly display any Developer Marks you provide, subject to any usage or brand guidelines you may provide.
6.1. Generally.The Parties will each comply with all applicable laws, rules and regulations in their respective performance of their obligations under this Agreement. For the avoidance of doubt, the Parties each shall operate as independent controllers of personal information associated with End Users shared between them pursuant to this Agreement, subject to all other provisions of this Agreement. We each agree to accept privacy-related notices from the other, and to cooperate regarding the method of delivery of such notices.
7. Publicity.Either party may make positive, non-derogatory statements related to the Application or the Service on social media at any time. However, neither party will issue a press release or other public statement about this Agreement or the parties' relationship without the prior written consent of the other party; provided, however, that it shall not be a breach of this Agreement if it becomes necessary for Microsoft to make a public statement about any enforcement action it takes against the Application or any termination of this Agreement.
8. Term, Termination, and Survival.
8.1. Term.This Agreement commences on the Effective Date and continues unless terminated as provided below.
8.2. Termination for Convenience.Microsoft may terminate this Agreement at any time without cause by giving thirty (30) days written notice to Provider.
8.3. Termination for Cause.
8.3.1. Mutual right. Either Party may terminate if the other Party breaches this Agreement and fails to cure the breach within thirty (30) days after receiving written notice of the breach. Either party may immediately terminate this Agreement immediately on written notice of a breach of Section 12.5 (Confidentiality).
8.3.2. Microsoft's right. Microsoft may terminate this Agreement for cause immediately with or without notice if: (a) Developer violates any Microsoft Policies; (b) Microsoft determines, in its sole discretion, that your Application, its commercialization, or your use of data conflicts with Mixer's values, (c) any violation of Section 3.3.2 for on attempted circumvention, abuse, or interference with any API, or for any other Application that interferes with or unduly impairs the operation of the Service, or (d) Developer engages in conduct on or off the Service that, in Microsoft's reasonable and good faith opinion, negatively and materially affects Microsoft's image, or reflects unfavorably upon the professional, business, or personal reputation of Microsoft.
8.4. Effect of Termination.If Microsoft terminates for convenience, or if Microsoft terminates immediately for any reason, Microsoft shall have no further obligation to Developer. Developer shall be obligated to delete any Microsoft information or Mixer data in its possession.
8.5. Survival.Sections 1 (Definitions) 5.1 (Ownership), 5.2 (License to Feedback), 5.4 (Licenses By Developer), 6 (Privacy), 8.5 (Survival), 9 (Representations and Warranties), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General Terms), as well as any provision which, by its nature or express terms should survive, will survive the termination or expiration of this Agreement and remain in force.
9. Representations and Warranties.
9.1.Developer represents and warrants that:
9.1.1.Developer has reached the age of legal majority and may enter into a legally binding agreement;
9.1.2.Developer has the authority to enter into and fully perform this agreement;
9.1.3.Developer's execution and performance of this Agreement will not violate any other agreement or obligation between Developer and any third party;
9.1.4.Developer will comply with all laws and regulations and Microsoft Policies;
9.1.5.if requested, Developer will aid Microsoft in complying with all laws and regulations;
9.1.6.Developer owns its Application (including any intellectual property therein), or otherwise has sufficient rights and authority to grant the licenses hereunder to Microsoft, and to authorize other End Users of the Service to reproduce and utilize the Application;
9.1.7.any Application does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, right of publicity, or any other intellectual property or proprietary right;
9.1.8.any Application does not and will not slander, defame, or libel any other person;
9.1.9.any Application does not and will not contain any prerelease or non-public beta software, game content, or any other confidential information of Microsoft or any third party that Developer is not authorized to disclose;
9.1.10.any Application does not contain any virus, adware, spyware, worms, or other harmful or malicious code;
9.1.11.Developer will comply with any additional or third-party terms that may apply to Developer's use of the Development Resources; and
9.1.12.Developer will not engage in conduct on or off the Service that is fraudulent, malicious, or offensive; would call Microsoft's ethics into question; or disparage Microsoft (including its Affiliates, products, services, and brands), the Service, or any End User of the Service.
9.2. Disclaimer of Warranties.The Service, Development Resources, API, microsoft marks and all other materials provided by microsoft hereunder are provided "as is" and "with all faults" and "as available." Microsoft disclaims all other warranties of any kind with respect to the preceding, whether express or implied, including but not limited to product liability, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Microsoft may alter or disable the Service, Development Resources, or API, without notice at any time for any reason.
10.1.Developer will indemnify, defend, and hold harmless Microsoft and its Affiliates, and its and their directors, officers, and employees, contractors, agents and third party suppliers harmless against any claims, actions, demands, proceedings, damages, costs, losses, and liabilities of any kind (including, without limitation, reasonable attorneys' fees and legal expenses), arising out of (a) Developer's use of the Service, (b) Developer's Application, (c) Developer's violation or alleged violation of the rights of any third party, (d) Developer's violation or alleged violation of Microsoft Policies, or (e) Developer's breach or alleged breach of any of the representations, warranties and covenants made herein.
10.2.The indemnified Party will: (a) provide the other Party with reasonably prompt notice of any Claim; (b) permit the other Party through mutually acceptable counsel to answer and defend Claims; and (c) provide the other Party with reasonable information and assistance to help defend Claims at the indemnifying Party's expense. Any indemnified party may employ separate counsel and participate in the defense of any Claim at its own expense. The indemnifying Party will not settle any Claim without the indemnified Party's prior written consent.
11. Limitation of Liability.Microsoft will not be liable for any special, incidental, consequential, exemplary, punitive, or other indirect damages (including damages for loss of profits or revenues, business interruption, or loss of business information), foreseeable or unforeseeable, arising out of this Agreement regardless of the basis of liability (breach of contract, tort, strict liability, or otherwise), and even if advised the damages are possible. This limitation applies regardless of the legal theory for the claim and even if advised of the possibility of such damages. In no event will Microsoft's aggregate liability, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability, or any other theory, arising out of or relating to this Agreement, including the use of or inability to use the Service, exceed the amount Microsoft receives, if any, for using the Application in connection with the Service during the 12 months immediately preceding the date of the claim, or one hundred US dollars ($100 USD), whichever is greater.
12. General Terms.
12.1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior proposals, understandings and communications between the Parties with respect to that subject matter. Microsoft may update or revise this Agreement at any time. If Microsoft provides you with any supplemental terms in writing that are clearly labeled "Supplemental Terms," then such terms are hereby incorporated by reference, shall supplement this Agreement, and shall control to the extent of any conflict.
12.2. Independent Contractors.The Parties are independent contractors. Neither Party is an employer, employee, agent, partner or legal representative of the other for any purpose and neither has any right, power or authority to create any obligation or responsibility on the behalf of the other.
12.3. Waiver.The failure of either Party to enforce, or the delay by either Party in enforcing, any of its rights under this Agreement will not be deemed a continuing waiver or a modification thereof and either Party may, within the time provided by applicable law, commence appropriate legal proceeding to enforce any or all of its rights.
12.4. Third Party Beneficiaries.No person, firm, group or corporation other than the Parties will be deemed to have acquired any rights by reason of anything contained in this Agreement.
12.5. Confidentiality.Any Microsoft Confidential Information shared with Developer under this Agreement is subject to the Nondisclosure Agreement between the parties, regardless of its earlier termination or expiration (" NDA "), if there is an existing NDA. The terms below apply there is no existing NDA, or if any Confidential Information was shared prior to execution of the NDA.
12.5.1.During the Term, and for five years thereafter, Developer will hold in strictest confidence, and will not use or disclose to any third party, any Microsoft Confidential Information. The term "Microsoft Confidential Information" means all non-public information that Microsoft designates, either in writing or orally, as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential.
12.5.2.If Developer is uncertain what comprises Microsoft Confidential Information, Developer will consult Microsoft. Microsoft Confidential Information does not include information known to Developer prior to Microsoft's disclosure to Developer, or information that becomes publicly available through no fault of Developer.
12.5.3.Developer will employ reasonable security procedures to prevent disclosure of Microsoft Confidential Information to unauthorized third parties.
12.6. Assignment.Developer may not sell, assign, transfer, pledge or encumber this Agreement or any right, or delegate any duty or obligation under this Agreement, by assignment or operation of law, without Microsoft's prior written consent. Provider will be deemed to have assigned this Agreement if Provider engages in a change of control transaction. Microsoft may assign or delegate its rights or obligations under this Agreement to any of its Affiliates, and any Affiliate of Microsoft may also assign or delegate any rights or obligations assigned to them pursuant to this section to another Affiliate. This Agreement will inure to the benefit of and bind all permitted successors, assigns, receivers and trustees of each Party. Any assignment in violation of this section will be null and void.
12.7. Choice of Law, Venue. This Agreement shall be construed and controlled by the laws of the State of Washington. For any Claim permitted in court under this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts of King County, Washington.
12.8. Severability.If any provision of this Agreement is found to be invalid or limited in its force, it will be enforced to the maximum extent of the law and the remainder of the Agreement will continue in force.
12.9. Notices.Notices may be provided either by electronic or physical mail. Any notice to you may be sent to the email or physical address on file in the Developer Account. Any physical notice to Microsoft must be sent to Microsoft Corporation, Attn: Assistant General Counsel, Xbox, One Microsoft Way, Redmond, WA 98052, USA. Any electronic notice must be sent to email@example.com.
12.10. Enforcement.Microsoft reserves the right to take any enforcement action it deems necessary against any Application, including without limitation, as necessary in Microsoft's sole discretion to protect the Service or any End User or device from any virus, adware, spyware, worms, security vulnerabilities, or other harmful or malicious code.